Lake George Park Commission

Meeting #323

29 June 2004

North Queensbury Firehouse

Cleverdale, NY


PRESIDING:                Bruce E. Young, Chair

COMMISSION MEMBERS PRESENT:    Margaret M. Stewart
                        Anthony P. Reale
                        John C. McDonald, Jr.
                        Joan A. Robertson
                        Thomas K. Conerty
                        Roger H. Phinney
                        John Pettica, Jr.
                        (Erin M. Crotty, DEC Commissioner)
                         Thomas W. Hall, representing

COMMISSION MEMBERS ABSENT:    Shauna M. DeSantis

COMMISSION COUNSEL:        Martin D. Auffredou
                   
COMMISSION SPECIAL COUNSEL:    Robert Feller

COMMISSION STAFF PRESENT:    Michael P. White, Executive Director
                        Kathleen Ledingham, Secretary II
                        Roger Smith, Conservation Operations Supervisor I                            J. Thomas Wardell, Senior Sanitary Engineer
                        Keith G. Fish, Operations Director
                        Molly Gallagher, Environmental Analyst I
                        Peggy Sturtevant, Principal Account Clerk

GUEST:                    Thomas L. Wood

DEC STAFF PRESENT:            Ron Montesi

OTHERS PRESENT:
Mary-Arthur Beebe                Chris Navitsky                Susan Young
John Salvador                John Dreps                Julianne Dreps   
Mark Schachner                Mary Alice Leary            Ken Ermiger       
Chris Navitsky                Stan Pretzker                John Mason
Paul Gordon                    Lonnie Lawrence            Stewart Mitchell
Gregg Sherry                Amanda Cooper            Stephen H. Shapron
Mary-Arthur Beebe                Lawrence Garbo            John T. Brothers
John Folino                    Marcia Snyder                Karen S. Lizzi
Barbara Badalato                Marvin Snyder                Joe Lizzi
Phyllis Hassard                Charles Welch            Jim Potter
Joseph Walsh                Lew Stone                Joan Stone
Lorence Queen                Susan Barden                William A. Harbour
John A. Wise                Chris Gabriels                Andrew Queen
Jeffrey Queen                Richard J. Thornton            Patricia Carney

Item #1 - Introductions, Roll Call, Minutes of Meeting

The 323rd meeting of the Lake George Park Commission was called to order by Chairman Young at 10:15 a.m. and the roll was taken.

Mr. Young apologized for the late start of the meeting and said that a lengthy Law Enforcement meeting was held earlier this morning to discuss some legal issues.  

Secretary’s Note:  No votes were taken in Executive Session.

Mr. Young said that meeting minutes #322 were distributed in advance of this meeting to Commission members for their review.  He asked if there were any corrections or discussion. 

Upon the motion of Maggie Stewart, seconded by Tom Conerty, all Commission members present voted affirmatively to approve the minutes of Meeting #322 as submitted.


Item #2 -  Project Review Committee Report:   Margaret M. Stewart

Molly Gallagher read a prepared statement (attached) which explains Project Review procedures.

Bruce Young said that the Project Review Committee’s initial session is an opportunity for people either for or against a project to express their comments.  He said that the second portion of the Project Review is basically a discussion and determination among Commission members.  He said that normally the only time that someone from the audience would be recognized in that discussion would be a need for clarification or additional information on an issue.  “I strongly recommend that if you have something to say on either of the two projects that we are going to be talking about, this is the time to do it,” he said.

Project Review Report

Maggie Stewart said that the Project Review Actions Report contains applications that are active.  She read and moved to approve Resolution 2004-38 which directs that the Project Review Report be incorporated in full in the minutes of the full Commission meeting.  The motion was seconded by Joan Robertson and all Commission members present voted affirmatively.

Mr. Young further explained Project Review procedures.  He said that there are no predetermined decisions and that all projects have at least two resolutions - one for and one against.  He said that Commission members will decide during the second portion of Project Review which resolution they will adopt.

Maggie Stewart introduced the first project.


Variance Request for Wharf Construction submitted by Richard & Barbara Thornton, Town of Ticonderoga, County of Essex - #1548-13-04

Molly Gallagher said that this project is for the proposed construction of a 4' wide, 40' long stake supported straight pier.  She said that a variance is required as the property lines converge due to a jog in the shoreline.  There is 50 feet of lakefrontage and the property is located on Black Point Road in the Town of Ticonderoga.

Pat Carney, attorney representing the applicants, addressed the Commission.  He said that he has assisted Mr. Thornton in this application for a variance to construct a dock.  He said that Mr. Thornton has a contract to sell the land and that an appraisal has been submitted.  He said that the opinion of the appraiser is that the property is worth about fifty percent less without a dock than with a dock.  He referred to a blown up copy of the tax map to denote how the setback lines are regulated in applications for docks prohibiting the construction of a straight dock on this lot.  He said that Mr. Thornton owns the property east of the proposed dock where he resides and has over 150 feet of lakefront.  He said that Mr. Thornton has  no objection with the interference of the lot line on his remaining property.  He said that there is no interference with the extension of lines on the property to the west.  “The variance, we feel, would be diminutus.  It is, we think, justifiable based on the financial hardship that this would impose if a dock were not allowed to be constructed on this lot,” he said.

Joan Robertson asked if the proposed dock will cross the property line.

Mr. Carney said that as proposed, the dock would not comply with the 20' setback.  “The shoreline curve is what kind of throws a monkeywrench in this,” he said.

Mrs. Robertson asked how many feet the dock extends past the property line.

Mr. Carney said that it would be hard to say.  “I’m not exactly sure that this shoreline curves as much as it does.  This shoreline, I believe, is a little flatter than is depicted on this tax map,” he said.

Maggie Stewart asked if anyone has objected to the granting of a variance for this project.

Mr. Carney said no.

Mr. Thornton, the applicant, said that the neighbor to the east has no objections.

The Chair asked if there were any further comments on this application and received no response.


Variance Request for Wharf Modification submitted by Sandy Lane Homeowners, Inc., Town of Bolton, County of Warren -- #5220-25-04

Molly Gallagher introduced this project.  She said that the project is for the construction of a 3' wide, 36' long stake supported walkway to connect two of the U-shaped wharfs. 
There is 290 feet of lakefrontage and the project is located in Boon Bay in the Town of Bolton.

The Chair asked if the Project Review Committee conducted a site inspection on this property.

Joan Robertson said that the Project Review members did perform a site inspection.

Chris Gabriels, representing Sandy Lane Homeowners, addressed the Commission.  He said that he had been asked by staff to supply additional information to justify the need for a variance.  He distributed several photographs which he said were intended for the Commission members who had not visited the site.  The pictures depicted the berm which the ice pushed up on the shore this past winter.  “That would be the normal pattern to which these people would access their docks,” he said. 

Mr. Gabriels said that letters from the homeowners have been submitted which indicate that they are concerned about their ability to continue to access the dock to the shoreline.  He said that a letter describing liability concerns from Wise Insurance has also been submitted. 

Maggie Stewart asked Mr. Gabriels if he has heard from the Adirondack Park Agency (APA) on this application.

Mr. Gabriels said that he has talked with the APA regarding the concerns they have on the wetland located directly behind the berm.  He said that APA is desirous of preserving the berm.

Maggie Stewart asked if the APA indicated that a walkway was a better way to go than having people walk on the berm.

Mr. Gabriels said that APA did not make an on-site inspection.  “I assume that you would make the decision as to whether or not you thought it appropriate to place the homeowners in a position of having to utilize the shoreline as it is now.  With the homeowner’s comments and the insurance company’s comments, I would suggest that it is fairly obvious to any reasonable person that is not an appropriate way to access the docks,” he said. 

Roger Phinney asked if the berm existed before the ice damage or whether it was created by the ice.

Mr. Gabriels said that there was always a berm.  He said that the recent ice damage has made the berm un-walkable.  Further discussion followed.

The Chair asked if there was any further comments.  There was none.


Secretary’s Note:    Bruce Young explained that there is an issue on a previous project that is not included in the first portion of the Project Review.  He said that discussion is scheduled later in today’s meeting.


Other Business:

Mr. Young introduced former Commissioner Thomas Wood to the public.

Tom Conerty read and moved to approve Resolution 2004-40:

WHEREAS,    Thomas L. Wood served the People of the State of New York as a member of the Lake George Park Commission from May 1996 until March 2003, and

WHEREAS,    during this time Mr. Wood devoted his time and energy in the service of the public for the preservation and protection of Lake George, and

WHEREAS,    Mr. Wood worked diligently as a member of the Commission’s Project Review Committee, his careful study and insight providing guidance to the Commission in its determinations on hundreds of projects, and
   
WHEREAS,    Mr. Wood’s  service to the Commission revealed his quiet resolve, immeasurable patience and a kindness and understanding for others that mark values to which all may aspire.

NOW THEREFORE BE IT RESOLVED THAT Thomas L. Wood is to be commended for his commitment to public service, his adherence to values of good citizenship, his love for Lake George and his dedication to the principles of good friendship.

BE IT FURTHER RESOLVED that the Lake George Park Commission Members and Staff offer Mr. Wood our deep appreciation for your efforts, your wise counsel and your gracious nature and offer in return our heartfelt affection and best wishes for your future endeavors.
 
The motion was seconded by Tony Reale and all Commission members present voted affirmatively.


Item #3 - Fiscal Actions Report

Mr. Young said that the reports on fiscal affairs for the months of April and May 2004 prepared by Peggy Sturtevant was distributed in advance of the meeting. 

Mr. Young asked if there were any questions or additions from Commission members.

Upon the motion of Roger Phinney, seconded by Maggie Stewart, the Fiscal Actions Reports for the months of April and May 2004 were accepted as submitted.


Item # - Project Review Resolutions:   Maggie Stewart 

Resolution 2004-36 - Richard & Barbara Thornton

Maggie Stewart read and moved to approve Resolution 2004-36.  Joan Robertson seconded the motion:

WHEREAS    the Lake George Park Commission has reviewed the application, supporting documents, comments received and other information which appears in the record; and

WHEREAS    the Commission has made a determination pursuant to 6NYCRR 645-3.6 and the State Environmental Quality Review Act 6NYCRR 617.5 that the project is a Type II action and does not require further review of potential environmental impacts pursuant to this act; and

WHEREAS    the action is considered to be a Minor project pursuant to 6NYCRR 645-5.3 and public notice has been published and distributed; and

WHEREAS    the applicant has applied for a permit for wharf construction; and

WHEREAS    the applicant has requested variance from 6 NYCRR 646-1.1(c)(11) Every dock or wharf constructed shall have a minimum setback of twenty feet from the adjacent property line extended into the lake on the same axis as the property line runs onshore where it meets the lake, or at a right angle to the mean high-water mark, whichever results in the greater setback; and
       
WHEREAS    the applicant has demonstrated that strict conformance with the regulations will cause unnecessary hardship due to the following unique and peculiar circumstances which impose the following substantial financial, technical and safety burdens:  * (see page 7)
       
WHEREAS    the Commission finds that there is no reasonable possibility that the applicant's property will bring a reasonable return following conformance with the regulations; and

WHEREAS    the Commission finds that the project represents the minimum necessary variance required to alleviate the hardship; and

WHEREAS    the Commission finds that the proposed project will have no adverse impact on the health, safety or welfare of the public, the environment or the resources of the Park; and

WHEREAS    the Commission finds that the project will not alter the essential character of the area in which it is proposed and will not lead to congestion in the Park; and

WHEREAS    the Commission finds that the project will not have an undue visual, cultural or audible impact on the neighborhood or the Park.

NOW THEREFORE BE IT RESOLVED
        The Lake George Park Commission hereby approves the request for variance and approves the above application as proposed.

Maggie Stewart said that the converging property lines on the shorefront are sometimes a nuisance and that sometimes you have to do what is best for the environment first and for the upland property owner.  “In this case, it seems to me, a variance is appropriate since the Thorntons are the only ones affected.  There are no neighbors affected by the granting of this variance and there is a question about the shoreline,” she said.

Martin Auffredou said that unique and peculiar conditions and the rationale for the hardship should be recited.  He said that he has heard from Mrs. Stewart of the uniqueness of the convergence of the property lines and a question about the actual curvature of the property line.  He said that he has also heard Mrs. Robertson state that it is a minimal variance that is being requested.  He asked if there was anything else that could or should be added to the findings.

Maggie Stewart said that the property is going to be sold and that property with a dock is worth more than one without.

Mr. Auffredou asked if this was a finding of financial hardship.  “I think it’s obvious that a property is worth more with a dock than without a dock,” he said.

Joan Robertson said that it is her understanding that the property will not be sold if there is no dock.

Mr. Thornton said that he has a contract for the sale of the property.  “If I can’t get a dock, the contract of sale is null and void,” he said.  He said that the proposed sale is to a neighbor whose home is land bound and that the neighbor’s property is contiguous with his property.

Mr. Auffredou asked if this answers the question of financial hardship.

Mr. Young said that in the past a variance has not been approved mainly to increase the sale value or the selling of a piece of property.  “I would strongly urge the Commission not to get in the habit of saying that just because you can get more money for something is a reason for granting a variance,” he said.

Roger Phinney said that intersecting property lines created by how a line is drawn has been looked at before.  He said that there is a question to the actual shape of the shoreline.  “Is there a uniqueness of a tremendous financial hardship if you can’t do this or is it more just of a practicality situation because of the way somebody determined how we have to draw the line,” he asked.

Tom Conerty said that he knows there has to be documentation but that it would just to nice to grant this variance because it makes sense.

Mr. Young said that a strict interpretation of the property line extensions does not make sense in this instance.

Maggie Stewart said that there is also the question of whether it is flatter than it shows on the information that has been received.  “It might be totally inside the property lines,” she said.

Martin Auffredou said that it could be said when it is viewed from Mr. Thornton’s perspective that there would be a lack of reasonable return for what he could achieve on a sale of the property based on the appraisal without a dock by today’s market.

Further discussion followed and it was agreed that the following represents the unique and peculiar circumstances: 

    Strict adherence with the setback requirements would place undue hardship on the applicant; uniqueness of the converging property lines; the tax map may not accurately depict the curvature of the shoreline; lack of reasonable return as evidenced by the appraisal; and that it is a minimal variance. 

The motion being on the floor, Commission members present voted as follows:

AYES:    Stewart, Robertson, Young, Phinney, Reale, McDonald, Hall, Conerty,
        Pettica
NAYS:    None
ABSTENTIONS:    None Resolution 2002-37 - Sandy Lane Homeowners, Inc.

Maggie Stewart read parts of the resolution.

Joan Robertson said that she thinks that the uniqueness of the variance request is that the berm that protects the wetlands needs to be protected.  She said that having visited the site that it is tricky to get across the berm.

Maggie Stewart said that there is a safety factor involved.  She said that after a rain the berm is going to be very slippery to walk on.  She said that having a 30' walkway is less invasive than walking on wetlands.  She said it is also safer.

Bruce Young asked if the dockage would be increased.

Maggie Stewart said that the docking would not be increased.  “It increases the safety factor,” she said.

John Pettica said that it protects the environmental aspects of the area.

Roger Phinney said that there seems to be a lot of concern with the safety of people carrying infants and kids that will have to walk across the berm.  He asked about the cost involved in grading the berm.

Joan Robertson said that the applicants might not be allowed to grade the berm due to the presence of the wetland. 

Tom Conerty said that there is a financial concern of liability.

The Chair asked if there were any further comments from members and received no response.

Maggie Stewart read and moved to Resolution 2004-37 which was seconded by Joan Robertson:

WHEREAS    the Lake George Park Commission has reviewed the application, supporting documents, comments received and other information which appears in the record; and

WHEREAS    the Commission has made a determination pursuant to 6NYCRR 645-3.6 and the State Environmental Quality Review Act 6NYCRR 617.5 that the project is a Type II action and does not require further review of potential environmental impacts pursuant to this act; and

WHEREAS    the action is considered to be a Minor project pursuant to 6NYCRR 645-5.3 and public notice has been published and distributed; and

WHEREAS    the applicant has applied for a permit for wharf modification; and

WHEREAS    the applicant has requested variance from 6 NYCRR 646-1.1(c) (6) The maximum width of any dock or wharf, including all lateral projections, shall be forty feet; and
       
WHEREAS    the applicant has demonstrated that strict conformance with the regulations will cause unnecessary hardship due to the following unique and peculiar circumstances which impose the following substantial financial, technical and safety burdens:

        The berm that protects the wetlands needs to be protected;  there is a safety concern for people walking on the berm; the proposed walkway will not increase berthing spaces; and there are financial concerns of liability

WHEREAS    the Commission finds that there is no reasonable possibility that the applicant's property will bring a reasonable return following conformance with the regulations; and

WHEREAS    the Commission finds that the project represents the minimum necessary variance required to alleviate the hardship; and

WHEREAS    the Commission finds that the proposed project will have no adverse impact on the health, safety or welfare of the public, the environment or the resources of the Park; and

WHEREAS    the Commission finds that the project will not alter the essential character of the area in which it is proposed and will not lead to congestion in the Park; and

WHEREAS    the Commission finds that the project will not have an undue visual, cultural or audible impact on the neighborhood or the Park.

NOW THEREFORE BE IT RESOLVED
        The Lake George Park Commission hereby approves the request for variance and approves the above application as proposed.
   
The motion being on the floor, Commission members present voted as follows:

AYES:    Stewart, Robertson, Young, Phinney, Reale, McDonald, Hall, Conerty,
        Pettica
NAYS:    None
ABSTENTIONS:    None


Item #4 - Project Review:  Discussion and Determination of Reconsideration

Secretary’s Note:    Martin Auffredou, Counsel for the Commission, has recused himself and left the table.  Robert H. Feller of Bond, Schoeneck & King is representing the Commission in this matter.

Matter of Wharf Construction and Modification submitted by Kenneth Ermiger, Town of Lake George, County of Warren

Chairman Young said that this matter is not per say a project but rather to reconsider a decision which the Commission made in November of 2003.  He said that the reasons for the reconsideration are legal issues that have since been decided.  He said that comments will be taken from the attorneys.  He asked Mr. Feller to brief the public on what will be discussed.

Mr. Feller said that in November of 2003, the Commission issued a tentative denial on an application that was submitted by Mr. Ermiger.  He said that the application requests permission to construct two docks on Cooper Point and also requests the ability to reconfigure some of the existing docks.  He said that the reconfiguration would be connecting some “i” docks and making them into “u” docks.  He said that the purpose of this would be to reduce the total number of docks on Cooper Point which is relevant to the Commission’s density rules regarding the amount of docks that can be built on any particular lakefrontage.  He said that the denial in November was issued citing two bases:  1) the litigation that was on-going between the applicant and the homeowners association which concerned the property rights in the area where the connectors would have to be placed; and 2) the question of the propriety of allowing the connection of the “i” docks into “u” docks and the recount that would ensue from that.

Mr. Feller said that the civil litigation has been decided at the Supreme Court level in favor of the applicant in that he does have the right to place connectors in that area.  He said that leaves the Commission with the secondary issue.  He said that the secondary issue is if this would satisfy the Commission’s rules relating to the total number of docks that are permitted on the lakefrontage.  He said that there are sort of two elements to the secondary issue.  He said that the Commission can consider the entire parcel as a single parcel even though it has now been subdivided.  He said that the entire parcel can be looked at when it determines compliance with the density standards.  He said that if the subdivided parcels were looked at as distinct parcels, there is no question that placement of a single U-dock as proposed would meet the density requirements.  He said that if the Commission views the parcel as an un-subdivided parcel, that is, all of Cooper Point, it would become an issue of how the docks were counted.  This would resolve to the question of whether the “i” docks are counted as single docks or through connectors that two “i” docks are counted as a single “u” dock.

Mr. Feller said that it has been pointed out at the last meeting that Commission staff has performed an approximation analysis of the entire area.  He said that the analysis looks at the maximum carrying capacity in terms of docks and dock space on Cooper Point.  He said that it doesn’t look at any particular configuration but rather the maximum configuration.  He said that staff, looking at the maximum configuration, has advised the Commission that the two additional docks would still be within the maximum carrying capacity of that area.

Mr. Feller said that staff also recommends that if the applications were to be approved that a condition be placed on the approval that no additional docks be permitted on the two sub-divided parcels and that a deed restriction be placed in the deeds of the two sub-divided parcels stating that. 

Mr. Feller said that after the decision was issued by the Supreme Court, the applicant requested that the Commission reconsider its decision.  He said that he is advising the Commission that they have the authority to do so.  “There isn’t a specific provision in their own rules but nonetheless, it has been held in many administrative forums that there is inherent authority to reconsider decisions, particularly in a case such as this where one basic reason for the decision has now been altered because of a decision of a court,” he said.  He said that the Commission should focus on whether the proposal meets the density requirements in the rules.

The Chair said that he would like to hear the presentations of the attorneys for both sides.  “There is a great deal of emotion behind it and it is narrowing down to a legal issue determining density,” he said.   He asked that speakers not reiterate what has already been said.

Stan Pritzer spoke on behalf of the applicant.  He said that he concurs with Commission Counsel and the conclusions Counsel has made.  He said that it is very clear that the Commission has the jurisdiction to reconsider an application and cited section 645.5.11 (a) which states “any time period specified in the Subpart may be extended for good cause,” he said.

Mr. Pritzer said that his client is asking to put one dock on a parcel that has 312 feet of shoreline and another dock on another parcel with 424 feet of shoreline.  He said that had these parcels been treated as subdivisions and not as a whole, there would be no question that the applicant would be allowed to do that and more.  He said that the applicant is asking that the review of this project be in a manner historically by looking at it as one parcel and then calculating the density based on that.  He said that Commission staff has determined that 18 docks are permitted. 

Mr. Pritzer referred to the decision by Judge Sheridan which he said clearly determines that there is no question that the strip in front of the dock is owned by Mr. Ermiger.  “There is no adverse possession.  They have an easement over it,” he said.  He said that Mr. Ermiger would be happy to not connect the docks if the project can still be approved.  He said that Mr. Ermiger is willing to place a deed restriction on the two new parcels that no additional docks would be allowed.  “Please stay focused on the two docks we’re asking for,” he said.

Jim Potter said that he is one of the two attorneys representing the Green Harbour Homeowners Association.  He said that the first issue is ownership of the docks.  He said that on June 22nd Mr. Walsh received from the Green Harbour Development entity a deed to the docks.  “There is no question who owns the current “i” shaped docks.  Now, what the applicant has proposed is to create a “u” shaped dock from those docks that somebody else owns,” he said.  He said that what Mr. Ermiger is effectively proposing is that two-thirds of the dock will be owned by the Homeowners Association and one-third will be owned by Mr. Ermiger.  “That’s a legal fiction that does not exist in your regulations.  Your regulations provide for one dock – they don’t provide for two docks with a connector owned by a third party,” he said.  He said that since Mr. Ermiger does not own the “i” shaped docks, he has no right to connect to them and create a “u” shaped dock.  He also expressed safety concerns.

Joe Walsh, also representing the Green Harbour Homeowners Association, said that he is concerned that the Commission is categorizing this proceeding as a reconsideration  request.  He said that there is only one place in the regulations where reconsiderations are allowed and that deals with regulatory fees and penalties.  “Even if Mr. Feller’s statement is correct that there is a body of law out there somewhere which suggests that administration tribunal has the power to reconsider and in so doing avoid applicable statute of limitation time concerns which may not be modified, by the way, by the agency or the Commission,” he said. 

Mr. Walsh said that a decision was rendered and that the one of the two-prong bases for the decision was pending litigation.  He said that the litigation is still pending.  He said that the second one was that the density requirements were exceeded.  He referred to comments made in the minutes of the Commission in a previous meeting.  He said that members of the public ought to have the right to comment as they did initially on this project.

Mr. Walsh referred to the Town of Lake George Planning Board’s decision which he said imposed eleven conditions.  He said that the only one relevant for today’s purposes is condition #6 which states no further expansion of the docks and moorings.   He said that it has been demonstrated that there were at the time 108 boat spaces, docks and moorings and one of the conditions that the applicant offered was an acceptance that there be no further expansion of the docks or moorings.  He said that condition #6 from the 1987-1988 Lake George Town Planning Board minutes should be part of the application. 

Mr. Walsh also discussed the history of the marina permit which he said was erroneously issued for too many boats.  He said that the docks were altered dramatically and in some instance individual piers were extended by 60 percent.  He referred to condition #6 again and said there is congestion in the harbor.  “108 spaces and we are now at 126 between the homeowner’s docks and the 1998 marina permit which is somewhere in limbo.  Again, we would ask for you to reconsider because these two applications, you just can’t ignore them, they’re not completely independent.  The marina permit and this application are intertwined – they’re joined at the hips,” he said.

Mr. Walsh discussed the 8 moorings.  He said that the moorings were supposed to be part of the Association property and were still contained in the commercial marina permit.  He said that he has just received a deed to the docks and moorings.  “There is some language in there which does not follow from the decision . . . subject to the rights of the vacant lot owners to use the moorings; i.e. for continued commercial purposes,” he said.  He said that he complained to DEC about the floating object permits which he said are still applicable and in DEC’s jurisdiction.  He said that there is complete non-compliance, not only with DEC’s floating object permits but also with the Commission’s regulations. 

Mr. Walsh spoke about Judge Sheridan’s decision.  He said that the bottom line is that there is nothing in the decision which addressed the conflicting rights of property owner versus easement holder.  He reiterated that public comments should be invited and said that he would like a response on why the Commission is not holding a revocation or modification hearing on the Class A permit which expired last year.

Mr. Feller reaffirmed that there is no problem with reconsidering the Commission’s early decision.  He said that there is no statute of limitations issued at this point because the Commission’s decision itself was only a tentative denial.  “Your decision that you made initially was not a final decision – not a final determination – it did not start any statute of limitations,” he said.  He said that the Commission is still within the administrative process.  He said that many administrative agencies, including DEC, have concluded that for the purposes of efficiency of administration, that reconsideration is inherent in the authorities. 

Mr. Feller said that the reason for the reconsideration is the new court decision which was previously cited in the Commission’s tentative denial.  He said that the court decision determined what the rights of the homeowners were vs. Mr. Ermiger and determined the question of the extent of the easement.  He said that the decision did not specifically get into the question of whether a connector was authorized as that particular issue was not being raised by the court.  He said that when the court determined that there were limitations on the rights of the homeowners with respect to the easement they have, it would indicate to him, that placing a connector would be within Mr. Ermiger’s rights.  He said that it doesn’t get into safety issues and that he is not suggesting that placing the connectors would not create a safety issue.  “That is an issue that this body would have to focus on,” he said.

Mr. Feller said that the Commission’s regulations do not directly address the question of converting two “i” docks into a “u” dock via a connection.  He said that this has been done historically by the Commission but it is not something directly addressed through regulation.  He said that he does not have anything to add to the question that was brought up on marinas as his focus has not been on the enforcement concerns of the existing marina.  He discussed the initial approval by the Town Planning Board and the condition of no further expansion of docks and moorings.  He said that he does not view the Town’s Planning Board decision as something the Commission has to enforce.  He said that the condition is enforceable presumably by the Town of Lake George.   He discussed deed provisions and said that when the condition was imposed, the Commission was not in existence.  “The Lake George Park Commission conceivably could take it into account or consider it, but even there I would advise against that because we do not know what the origins of that condition were or how that condition was intended to be enforced,” he said.  He said that Mr. Walsh previously indicated that the purpose of that condition was principally to control the congestion in the harbor area.  Mr. Feller said that it is not clear to him that the condition would be violated.  “The two docks that are proposed are not anywhere near the harbor area.  They are on the lakeside.  Maybe it would, maybe it wouldn’t –  but we didn’t impose that condition,” he said.  

Mr. Feller said that if the Board were to go ahead and approve, he would suggest limiting the number of docks on the two parcels.  He said that this would provide the authority for the Lake George Park Commission in the future to enforce it.  He also suggested a condition of not allowing the proposed construction of the docks until the homes are constructed.  He said that whatever approvals the Town would require in terms of sewer, water hook-ups, and etc. would be addressed first before dock construction.

Mr. Feller said that the basic issue is whether reconfiguration of the existing docks, whether done through imagination or through an actual physical connection would satisfy the Commission’s rules.  “I think that is an interpretation of the rule which is a matter of law.  It is within your discretion to interpret the rule in either direction,” he said.  He said that the most important things to consider are:  1) historical interpretation of that rule; 2) the implications of that interpretation for this in future applications in terms of what the rule was intended to do – protect against excess density in the lake; and 3) take into account the analysis that was performed by staff regarding the density issues. 

The Chair asked how many people in the audience felt that they were being shut out of the process.  He invited comments from the public.

John Salvador said that he was not prepared to address the issues today.  He suggested it be scheduled for a hearing.

John Dreps, president of the Homeowners Association, addressed Commission members.  “Based on the notice that was sent out, it’s really limited a lot of the homeowners from coming in to speak and make some comments,” he said.  He said that one of the most important subjects of the Homeowners Association is the safety and congestion.  He said that approval of the application has the potential of having more traffic and more people going across the Homeowners private beach, parking lot and drive.  He said that it is the Commission’s responsibility to take a hard look at these issues.  He read from the minutes of a previous Commission meeting in which several  of the Commission members expressed their concerns on this application.

Mr. Dreps said that these issues are still in the court.  He said that the lower court has decided but that this country gives the right to appeal.  “So, it’s really still in the courts.  It has not been determined until the appeals process is finished,” he said.  He read
the Commission resolution denying the application at a previous Commission meeting.  He said that the Homeowners issues are ownership of the docks and congestion.  “I represent the 83 homeowners and we’re concerned about everything.  As you know, we’re here for that reason and I hope you’ll take that into consideration when you make your decision,” he said.

Mr. Young asked Mr. Dreps if he would answer a hypothetical question.  “If you didn’t have the issue of the marinas and all that, do you have an issue with two docks being on these lots on the lakeside?” he asked. 

Mr. Dreps said that based on all the legal comments that Mr. Walsh has brought to the Commission’s attention, he would have to say yes.  After further discussion, Mr. Dreps said that if there were no other issues, he would not have any objection.  “But there are too many issues,” he said.

John Salvador in opposition to the project addressed the Commission.  He said that he has an issue with the placement of additional dockage on the lakeside of the island.  “It goes to the fact that there would be many more boats there and many more boats bring people, and people bring wastewater generation,” he said. 

Mr. Salvador said that there is a limited capacity at the sewage treatment plant and that the island has a limit as to what it may be allowed to discharge. 

Mr. Young said that the Commission would require the applicant to have a building permit before a dock could be built.  He said that the Town would have to examine the issue of a building permit and sewage.

Secretary’s Note:    The Chair announced a 10-minute break at 12:05 p.m..


The Chair reconvened the meeting at 12:15 p.m. and said that a number of issues have been raised on this project.  He said that he feels that the Commission has the right to reconsider this application.  “I also feel that the homeowners have a right to make a comment even though we’re back to specific issues,” he said. 

Mr. Young suggested delaying a decision on this project until the next Commission meeting.  He invited written comments from the public and instructed staff to prepare a concise figure on boat spaces, who has what, and so forth.  He said that he would also like a report from staff on the marina issue. 

Roger Phinney made a motion to table this project.  Commission members were in agreement that the reason for the tabling is as follows:   to allow the public the opportunity for additional written comments; preparation from staff of a concise figure on the number of boat spaces and moorings; and additional information on the marina issue.  The motion was seconded by Maggie Stewart and all Commission members present voted affirmatively.

Secretary’s Note:    Maggie Stewart left the room at 12:25 p.m.  Martin Auffredou returned as Counsel.


Item #5 - State Administrative Procedures Act – Review of Stormwater                    Management Regulations:   Martin D. Auffredou

Martin Auffredou said that the Commission has undertaken a five year review of the Stormwater Management regulations under the State Environmental Quality Review Act.  He said that this is a process that began December 24, 2003 when notice was published in the State Register inviting public comments on the stormwater regulations.  He said that the public comment process has concluded and that two very detailed comments were received.

Mr. Auffredou said that Commission members previously received a draft Summary Assessment and Response to Public Comments and Draft Finding for the continuation of the rule without substantive revisions.  He said that the next step would be to publish the Response to Comments in the State Register which would bring a close to the Commission’s five year review of the Stormwater regulations.

Mr. Young asked Commission members if they had any questions about the comments that were received. There were none.

Tom Conerty read and moved to approve Resolution 2004-39:

WHEREAS    pursuant to State Administration Procedures Act §207, the Lake George Park Commission is required to undertake a review of the stormwater management regulations for the Lake George Park contained in NYCRR 646-4, and

WHEREAS    on December 3, 2003, the Commission caused a notice to be published in the State Register indicating that the Commission was conducting a review of the stormwater management regulations and inviting public comments on the continuation or modification of the regulations, and

WHEREAS    the Commission distributed notice of the review and an invitation for public comments to the chief executive officer of each municipality bordering Lake George, the Department of Environmental Conservation, the Adirondack Park Agency, and not-for-profit groups having an interest in Lake George, and

WHEREAS    the Commission has prepared a summary, assessment and response to comments received  in response to the notice of review, and

WHEREAS    the Commission has reviewed draft findings, and

WHEREAS    the Commission has determined that the continuation of the regulations is warranted in order to fulfill the purposes set forth by the New York State Legislature in Article 43-112 and has also determined that no substantive revisions to the regulations are warranted, and


WHEREAS    the continuation of the regulations is a type II action pursuant to the State Environmental Quality Review Act and implementing regulations 6 NYCRR 617.

NOW THEREFORE BE IT RESOLVED that the Commission finds that in order to fulfill the requirements of §43-0112 of the Environmental Conservation Law that the stormwater management regulations for the Lake George Park codified as
6 NYCRR 646-4 should be continued without revisions, and

BE IT FURTHER  RESOLVED that the Commission adopts and accepts the summary. assessment and response to public comments (attached), and

BE IT FURTHER RESOLVED that the Commission adopts and accepts the findings for continuation of the regulations (attached), and

BE IT FURTHER RESOLVED that the Commission authorizes and directs the Chair, Counsel and Executive Director to publish a notice of the continuation in the State Register and to take other steps which in their judgement are reasonable and necessary to implement the purposes of this resolution consistent with State Administration Procedures Act.

The motion was seconded by Joan Robertson. Commission members present voted as follows:

AYES:    Conerty, Robertson, Young, Phinney, Reale, McDonald, Hall, Pettica
NAYS:    None
ABSTENTIONS:    None


Item #6 - Water Quality Programs Report:   J. Thomas Wardell

Tom Wardell reported on the stormwater program report.  He said that he has been doing some joint inspections with the Towns of Queensbury and Lake George.  He said that the purpose of this joint effort is a comparison.  “We want to see how they conduct inspections and see if what they’re looking for is the same thing we’re looking for under our program.  In fact, we’re very pleased with them,” he said. 

Mr. Wardell said that under interagency coordination there were two projects in the same two towns (Queensbury and Lake George).  He said that he is working with DEC on enforcement of DEC sized facilities now that the regulations have gone from 3 acres of disturbance for a requirement of a State SPDES permit down to 1 acre in disturbance.  He said that he is coordinating on two big disturbances; one located in the Town of Lake George and one located in the Town of Queensbury.

Mr. Wardell said that he was in a training session yesterday with the Marine Patrol.  He said that the purpose is to involve the Patrol more in investigation, enforcement and public education of the Commission’s Stormwater and Pollution Prevention Programs.

Mr. Wardell said that the hotline is ready to roll.  He said that this summer the program will be supplemented by a couple of special sampling projects which will be reported in the Fall.

Mr. Wardell said that there have no turbidity calls from the northern end of the lake so far this year. 

Mr. Reale said that there is still some turbidity out there but that it is not as bad as last year.

Mr. Wardell said that he is working with the Chris Navitsy, the Lake George Waterkeeper, on a potential landslide in Ticonderoga that Mr. Navitsy spotted.  “It’s a natural thing and not due to any construction,” he said.  He said that the property owners are being contacted in a non-regulatory way to tell them that they have a potential erosion problem that could cause loss of property.  “We would like to come up and probably give them some engineering alternatives or solutions to help stabilize it,” he said. 

A discussion followed on the cause of the turbidity in the northern end of Lake George. 

Mr. Reale said that this may be due to bigger boats which keeps the bay stirred up. 

Mr. Young said that he believes that the boats crossing the channel at high speeds contributes greatly to the turbidity.  He asked if there was any legal enforcement of the boat speed through the channel markers.  He suggested a news release.

Mr. Phinney suggested signage be posted at the launch site.


Lake Level Reading:

Mr. Wardell reported that the reading at the Rogers Rock gauge is 3.7 today.


Mr. Phinney asked if Mr. Wardell had any information on the incident at Merrill’s Dockside Landing in Hague.

Mr. Wardell said that on Friday, June 11th, an alleged landslide occurred at that location.  He said that where the dockage was located in four feet of water is now in 40 feet of water.  He said that the dock apparently was constructed on an artificial shelf which gave way.  “As it started caving in the shoreline receded back in towards their buildings,” he said. 

Mr. Phinney reported that the day it happened was a State holiday due to ex-President Regan’s funeral and that the State offices were closed.

Ron Montesi said that he talked with DEC personnel who reported that this was the site of the old crib dock when graphite was being mined and brought down from the mountain to be transported to Ticonderoga by boat where Ticonderoga pencils were made.  “When they were mining the graphite there wasn’t a dam at the end of Lake George so the level of the lake was lower and that constitutes where that old crib dock was,” he said. 

Tom Hall said that DEC issued an emergency permit.  Further discussion followed.



Item #10 - Public Comments

●     Lake George Association

Mary-Arthur Beebe, Executive Director of the Lake George Association addressed Commission members.  She thanked Chairman Young for his talk at the Association’s annual meeting held recently at the Lake George Club.  She said that a luncheon meeting is planned for July 7th with the head of the Albany Law School as guest speaker and invited members to attend.

Ms. Beebe reported on a Citizen’s Water Quality Sampling Program recently started and is in conjunction with the Department of Environmental Conservation.  She said that the LGA is also working on open houses this summer.  “We’re trying to get the people more familiar with some of the land use management opportunities around the watershed because their participation in the local government process is critical to actually controlling the development in a reasonable way,” she said.  She also reported on a GIS mapping program that the Association has been setting up.  She said that this will determine whether a new project is on an excessively steep slope, what kind of soils are there, what the tree cover  is compared to the zone, what the rules are, and etc.  She invited members to visit the LGA office to see some of the LGA staff at work.  “There’s a lot going on in our office.  Without really coming in and seeing it, you can’t grasp the substance of it,” she said.


●    The FUND for Lake George, Inc.

Chris Navitsy, Lake George Waterkeeper, request a copy of the stormwater review.

Mr. White said that now that the Commission has adopted the review, it will be distributed to the commentors.

Mr. Navitsy said that he would like to bring attention to some dredging that is being performed at the Harris Bay Yacht Club.  He said that the dredging is along the wetlands along Harris Bay.  He said that he took three handfuls of the dredged material and found peat materials, lillies and emerging wetland plants.  He said that he was concerned if samples were taken and hopes that the Commission is involved  and made aware of any projects that go through DEC or the Army Crops.

Mr. Navitsy thanked Mr. Wardell and Mr. Reale for the help they provided regarding the potential landslide at the northern end of Lake George.


Other Public Comments:

Dr. John Brothers said that he understands that the Commission is supporting programs of reducing milfoil in Lake George other than using chemicals.  He said that he has a concern of the non-compliance of boat and dock registration fees.  He asked the Commission to consider going around the lake with him and counting the total number of docks with the required annual decal. 

John Salvador spoke about the stormwater memorandums of understandings with local governments.  He said that there is one aspect of this program that is being overlooked which deals with a stormwater maintenance management agreement, particularly with large projects.  He said that there are some major projects that have had serious failures of their facilities.  “I think that somehow, because these municipalities have an agreement with the Park Commission, you should enforce the terms of that MOU.  You can move in and take over.  You can force them to do this.  We have some major projects going on in the Town of Lake George now that need to address this,” he said.

Mr. Salvador reported on an article in a  publication by the Residents Committee to Protect the Adirondacks.  He said that the article states that the State of New York is at the bottom of the class with regard to septic system regulations. 


Item #11 – Adjournment

On the motion of Joan Robertson, seconded by Tom Hall, all present voting affirmatively, the Commission adjourned at 1:00 p.m.                   



                        Respectfully submitted,




                        Kathleen Ledingham
                        Commission Secretary


Secretary’s Note:    The next Commission meeting is scheduled for Tuesday, July 27, 2004, 10:00 a.m. at the Hague Town Center, Route 8, Hague, NY.