MINUTES OF June 20, 2006, REGULAR MEETING of the Town of Rochester PLANNING BOARD, held at the Town Hall, Accord, NY.
Meeting was called to order at 7:00 PM by the Chairman, Steven L. Fornal.
PRESENT: Robert Gaydos ABSENT: Frank Striano, Sr. Shane Ricks
Nadine D. Carney-left at 9:00PM
Anthony Kawalchuk
Steven L. Fornal, Chairman
Melvyn I. Tapper, Vice Chair
David O’Halloran, Alternate
Also present at the meeting was Town Attorney, Rod Futerfas, Town Planner, Jan Johannessenn, from The Chazen Companies and Planning Board Liaison, Alex Miller.
Pledge to the Flag.
DISCUSSION
AMPLE SELF STORAGE– c/o Todd Bivona, Special Use Permit for 56,000sf of storage sheds with 1,375 sf of office, Route 209, Tax Map #76.2-2-13.22, ‘B’ District
This application had been voted down by the Planning Board (PB) in December of 2005. Since then, Ample Self Storage appealed the decision to the Courts and the Courts have since overturned the Planning Board’s decision. The Court’s instructions were for the PB to issue reasonable conditions for the Special Use Permit.
Chairman Fornal explained that this application had received a decision by the Court for the PB to issue the Special Use Permit. Ample’s Attorney, Mr. Dunn was present along with applicant, Todd Bivona.
Mr. Ricks and Chairman Fornal recused themselves and the Chairman declared that Alternate, Mr. O’Halloran would sit on the Board. Vice Chairman Tapper would Chair this portion of the meeting.
Town Attorney, Rod Futerfas, explained the situation a little further. He noted that the Court had ruled that Ample Self Storage is to be given its permit. This application is to be granted, but the Court also ruled that reasonable conditions may also be imposed by the PB. In discussion that he has had with Mr. Dunn, Mr. Dunn has indicated that all of those items that were part of the Environmental Assessment Form and part of the Conditional Negative Declaration are fine with the applicant as said out in Mr. Futerfas’s letter with the deletion of item #1 under “Impact on Aesthetic/ Visual Resources”.
Mr. Futerfas continued, and noted that in terms of whether or not the PB could appeal the Court’s decision, the Town Board (TB) would be willing to consider it if the PB wanted to come before them and present the pros and cons from the PB’s perspective, the TB would consider whether or not to take the appeal. The next TB
meeting is the 28th of June. Mr. Dunn requested to be placed on the Agenda this evening so that the issue of reasonable conditions could be addressed.
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MINUTES OF MEETING June 20, 2006
DISCUSSION
AMPLE SELF STORAGE (cont’d): c/o Todd Bivona, Special Use Permit for 56,000sf of storage sheds with 1,375 sf of office
Mr. O’Halloran thought that the PB was meeting tonight to discuss the appeal, if the PB was going to move forward or not.
Mr. Tapper was aware and the letter that was sent to Mr. Dunn from Mr. Futerfas, and the Decision from Judge Egan was that the Application should be allowed to proceed but with reasonable conditions to be implied from the PB. The Town Attorney felt that the reasonable conditions would be to start with would be the conditions that were in place for the Conditional Negative Declaration (CND).
Mrs. Carney noted that the CND information are things that were incorporated into the site plan—being the number of plantings and the screening—to make that part of their Special Use Permit isn’t really part of the PB’s procedure. Usually there are other things… She really felt that all of the things addressed on the CND were proposed mitigation measures to close out SEQRA and be included in the site plan. She felt that one of the conditions could be to construct this according to the plans and that would cover the CND. Mrs. Carney had 5 conditions that she offered to the Board:
1. Site grading and improvements, including access drive, parking, areas, buildings, signs, lighting, utilities, fencing, landscaping, and soil erosion and sediment control measures shall be constructed and installed in accordance with the site plan dated 8/30/05.
2. The property owner shall maintain the improvements and premise to standards of repair, orderliness, neatness, sanitation, and safety acceptable to the Code Enforcement Office.
3. The property owner shall continue to maintain and replace trees and landscaping in perpetuity.
4. The property owner shall comply with applicable public health and sanitation standards and codes.
5. No building or structure shall be erected until a building permit has been issued by the Code Enforcement Officer.
Mr. Dunn felt that it sounded a little redundant to what is in the site plan. He didn’t think that there was anything that was said that wasn’t enforceable generally across the board and he didn’t quite like the word “perpetuity”. ‘Shall be maintained in accordance with local standards’, could have been better.
Mrs. Carney explained that the first condition basically covered that everything on the plan including the grading and building has to be constructed in accordance to that plan and that it should be maintained—along with the plantings.
Mr. Futerfas questioned if those plans conformed with the CND?
The Board stated yes. Some of the sheets in the site plan have different dates and those individual dates would be reflected in the final conditions. Were any of those relating to color schemes?
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MINUTES OF MEETING June 20, 2006
DISCUSSION
AMPLE SELF STORAGE (cont’d): c/o Todd Bivona, Special Use Permit for 56,000sf of storage sheds with 1,375 sf of office
Mrs. Carney stated that the Applicant had submitted a color scheme that the PB found acceptable and that was on record.
Mrs. Carney noted that everything they need to do is on the plans and if they construct something not in accordance with the plans, the Code Enforcement Officer would take care of that.
Mr. O’Halloran wanted to know if the PB voted on these conditions, would they then be saying that they weren’t going to move forward on the appeal?
Mr. Dunn questioned if the PB was planning on granting the Special Use Permit like the Judge said?
Mr. Futerfas answered that it was dependant upon the PB deciding to appeal the Judge’s Decision. He further explained that the PB ought to vote on the conditions with the proviso of appeal because the PB is required to provide the permit with reasonable conditions. If the Board decides to go through with the appeal, they aren’t going to voluntarily grant the permit and they will have to let the applicant decide how they are going to deal with that. So, the PB would vote on the conditions tonight and the implementation of the permit itself will wait on the decision of appeal.
Mr. Bivona stated that if everything gets voted and come July 6 (the deadline) and there is no appeal, then they get their permit?
Mr. Futerfas agreed.
Mrs. Carney pointed out that if the Board didn’t vote on any conditions at this meeting, there wouldn’t be any because they don’t meet again until July 18, 2006.
Mr. Futerfas suggested that the PB use Mrs. Carney’s conditions and vote on them unless someone had other suggestions.
Mr. Tapper read the conditions again:
1. Site grading and improvements, including access drive, parking, areas, buildings, signs, lighting, utilities, fencing, landscaping, and soil erosion and sediment control measures shall be constructed and installed in accordance with the site plan dated sheet 1: 8/30/05, sheet 2: 9/27/05, sheet 3: 9/27/05, sheet 4: 8/30/05, sheet 5: 8/30/05, sheet 6: 8/30/05, sheet 7: 8/30/04, sheet 8: 11/10/04, sheet 9: 9/5/05.
2. The property owner shall maintain the improvements and premise to standards of repair, orderliness, neatness, sanitation, and safety acceptable to the Code Enforcement Office.
3. The property owner shall continue to maintain and replace trees and landscaping.
4. The property owner shall comply with applicable public health and sanitation standards and codes.
5. No building or structure shall be erected until a building permit has been issued by the Code Enforcement Officer.
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MINUTES OF MEETING June 20, 2006
DISCUSSION
AMPLE SELF STORAGE (cont’d): c/o Todd Bivona, Special Use Permit for 56,000sf of storage sheds with 1,375 sf of office
Mr. Tapper wanted to add the condition that the granting of this Special Use Permit was contingent on whether or not the Town of Rochester Planning Board or the Town of Rochester Town Board decided to appeal the decision of Judge Egan.
Mr. Dunn suggested it to be worded on whether or not the appeal was actually made as opposed to decided to. Mr. Dunn also felt that it should be subject to the Court’s decision if the PB were to appeal.
Mr. Futerfas thought that everyone could agree that a Court’s decision would over ride that of the PB. He wasn’t concerned with that.
The Board decided on the condition being “subject to a Notice of Appeal being filed by July 6, 200”
Mrs. Carney motioned for the following conditions:
1. Site grading and improvements, including access drive, parking, areas, buildings, signs, lighting, utilities, fencing, landscaping, and soil erosion and sediment control measures shall be constructed and installed in accordance with the site plan dated sheet 1: 8/30/05, sheet 2: 9/27/05, sheet 3: 9/27/05, sheet 4: 8/30/05, sheet 5: 8/30/05, sheet 6: 8/30/05, sheet 7: 8/30/04, sheet 8: 11/10/04, sheet 9: 9/5/05.
2. The property owner shall maintain the improvements and premise to standards of repair, orderliness, neatness, sanitation, and safety acceptable to the Code Enforcement Office.
3. The property owner shall continue to maintain and replace trees and landscaping.
4. The property owner shall comply with applicable public health and sanitation standards and codes.
5. No building or structure shall be erected until a building permit has been issued by the Code Enforcement Officer.
6. Subject to a Notice of Appeal being filed by July 6, 2006.
Mr. Tapper seconded the motion. No discussion.
Vote:
Fornal: Recuse Ricks: Recuse
Tapper: Yes Carney: Yes
Striano: Absent Kawalchuk: Yes
O’Halloran: Yes Gaydos: Yes
DISCUSSION ON APPEAL OF AMPLE SELF STORAGE COURT DECISION TO GRANT A SPECIAL USE PERMIT
Mr. Tapper asked if Mr. Futerfas wanted to hear their reasons for appealing?
Mr. Futerfas stated that he wasn’t the Town Board and wouldn’t be making the decision. The PB should discuss if they were going to move forward.
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MINUTES OF MEETING June 20, 2006
DISCUSSION ON APPEAL
AMPLE SELF STORAGE (cont’d): c/o Todd Bivona, Special Use Permit for 56,000sf of storage sheds with 1,375 sf of office
Mr. Tapper stated that Mr. Futerfas was the PB’s attorney also—wouldn’t he have to give the Board some guidance of which way they should go and point out some reasons for them to appeal it and reasons not to appeal it?
The Town Attorney agreed and instructed the Board that they needed to come to a consensus one way or the other of how or if they were going to proceed.
Mr. Tapper explained to the PB that the TB would need to sign off on this. The PB would need their approval to appeal it and the TB would want to hear the specific reasons why the PB would want to appeal. He felt that it should be pretty obvious as to if a municipal board would vote against something, he would think that the Town Board would back it up.
Mr. O’Halloran had some questions for Mr. Futerfas. He didn’t see the complaint from the applicant or the Town’s response. All he saw was the outcome from the Judge. He wanted Mr. Futerfas to fill the Board in.
Mr. Futerfas explained that the Court’s Decision pretty much lays out what the applicant says and basically what Mr. Futerfas said in response (his response papers were given to the Supervisor, where it went from there he didn’t know). He noted that great deference is given to a PB’s decision and a PB decision isn’t overturned unless it is considered arbitrary and capricious or contrary to law. Mr. Futerfas basically took the PB’s decision for Ample Self Storage and minutes and said here is why the Board decided these various things. The law is very clear that you can’t substitute your judgment for the PB’s. You may disagree with them, but unless they are arbitrary and capricious, you can’t overturn them. The Judge looked at it and said in his opinion and said that the point that the case turned on is the fact that this is a permitted use and if the PB was going to deny a Special Use Permit for a permitted use, they’ve got to really outline specific findings that support that determination. In the Judge’s opinion, the PB didn’t make findings, they made conclusions.
One of the things that Mr. Futerfas might suggest to the TB in terms of training sessions is just how the PB might learn something from this decision because the PB was supposed to make specific findings based on evidence at the hearing. He thinks the Judge decided that the Board didn’t really have evidence, they had conclusions about what the PB thought ought to be and if the PB is going to deny a Special Use Permit for a Permitted use, the PB needs to have specific facts in front of them as part of the Hearing which would support a determination that this is such an egregious situation that that which is permitted by the code ought not to be permitted by the PB. In the Judge’s opinion, there were no facts or findings.
There were also some definitions within the code which will give the Town some help when they redraft the code. The PB refers to Rural Character—what is rural character? There are certain aesthetic things referred to that don’t really have a definition and the Judge wanted findings based upon evidence and in the Judge’s opinion the evidence was lacking. Mr. Futerfas’s suggestion was that if the PB was going to go to the TB and request and appeal— basically if the PB is going to undertake an appeal, they would want to win it, because it is expensive and if they are going to win it—what can the PB show to the Appellate Court to support themselves to prove to the Appellate Court that Judge Egan was wrong? Maybe the PB can look through the minutes and see that there was specific evidence in the record in one form or another that tells us that no this was not-
T/ROCHESTER Page 6
MINUTES OF MEETING June 20, 2006
DISCUSSION ON APPEAL
AMPLE SELF STORAGE (cont’d): c/o Todd Bivona, Special Use Permit for 56,000sf of storage sheds with 1,375 sf of office
included with the rural character. The fact that it may have been a bad business idea—he doesn’t know whether or not that is permissible.
Mrs. Carney noted that some codes do have laws where you can’t have another business within so many miles of another business, but the Town doesn’t have those standards.
Mr. Futerfas felt that you never like to be overturned in Court, but there is a positive aspect from this that the PB can use this decision as a learning experience. If we are going to appeal we want to win and what can we go to the Board with something from the record that we could take to an Appellate Court to convince them that our decision should be upheld. The major problem is that it is a permitted use and if you’re going to deny a permitted use you have to have some very strong findings and that is finding some facts based upon evidence in the record.
Mr. Tapper questioned if it was too late to state the facts now?
Mr. Futerfas noted that as long as it is part of the record, it can be used to support the case.
Mr. O’Halloran felt that the PB would need to go through the record to find things that supported their conclusions.
Mrs. Carney questioned if anyone thought that was possible?
Mr. O’Halloran felt that the PB should discuss what the merits were of denial to begin with. In the minutes Mr. O’Halloran laid out his reasons—whether or not it was supported by the code, he didn’t know. One of them was that the Ulster County Planning Board had given their recommendation and the Board didn’t follow through with those—the PB did choose one of those choices…
Mrs. Carney noted it was because the word “or” was listed—one or the other was the option—both recommendations didn’t need to be followed.
Mr. O’Halloran stated that his vote wasn’t for that “or” choice. He wanted the removal of the side buildings and that was what he stated when he voted. So, that was one of his reasons—so he believed that there were findings for that vote, whether or not was sufficient for all the members to vote for, was the question. The other thing was the discussion about rural character. They discussed the look of the main building with different roof styles. The applicant came back with different styles to try and meet that rural character, but quite a few members of the board were looking for a barn-like structure. What was presented didn’t fall in that category.
Mrs. Carney pointed out that our code doesn’t define architecturally what that should be. The Code doesn’t support that.
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MINUTES OF MEETING June 20, 2006
DISCUSSION ON APPEAL
AMPLE SELF STORAGE (cont’d): c/o Todd Bivona, Special Use Permit for 56,000sf of storage sheds with 1,375 sf of office included with the rural character. The fact
Mr. O’Halloran agreed that the code didn’t support it as far as specific architectural standards, but the code did support in harmony with rural character. The question is, is it sufficient evidence in your findings based on the review of the application to support that. There are the Public Hearings…
Mrs. Carney didn’t want anyone to forget that the Board would be using tax payer’s money to pursue this issue.
Mr. Tapper noted that it cost $65 to file a notice of appeal.
Mrs. Carney stated, but then you have to follow through with it—with the attorney’s expenses.
Mr. Tapper felt that if a Board makes a decision—and this was a popular decision—although that doesn’t have anything to do with the decision making, but it was a decision that was popular according to the people that spoke out at the Public Hearing. It just doesn’t seem that a Town Board would not support a Planning Board who makes a decision and would not support them, but letting them move forward with the appeal process. People appeal at the drop of a hat. This is one Judge’s opinion. The PB basically voiced their same opinions and same rationale for the Mobile Home Park and that was appealed to a local Supreme Court Justice, and that was upheld. Now they are appealing to the Appellate Division. But, decisions of Supreme Court Justices are appealed all the time and they are overturned. Lots of times there are thousands and thousands of cases that go from the Supreme Court Judge to the Appellate Division and some are successful and some aren’t. But he doesn’t see the rationale for the TB not to support a PB’s decision by filing the Notice of Appeal. It costs money, but in long run of things, its not that costly to file for a Notice of Appeal.
Mr. O’Halloran questioned Mr. Tapper. By the way he was talking, did he have any information that the TB wouldn’t support this appeal?
Mr. Tapper didn’t have any information like that, but if the PB had to jump through hoops to do this… to him it should have been automatic.
Mrs. Carney noted that what the Attorney was saying was that the PB can’t go forward with the same points that don’t have any pull behind them.
Mr. O’Halloran felt that the Attorney should dig in and find reasons and get further affidavits to create a stronger case. He felt that this is just a typical defense for a case.
Mrs. Carney noted that she was definitely unpopular here. Because she didn’t vote against the project because it wasn’t the color she wanted or the buildings didn’t have peaked roofs or because the project was within our codes setbacks, but was too close to the road for somebody’s liking… These are no reasons to appeal.
Mr. O’Halloran felt that Mrs. Carney’s feelings were one way to look at it, but you could also look at it another way. Would you want your findings and decision to be exercised and defended to the fullest? Lets reverse the circumstance, would you want your Town and your Board to support that decision?
Mr. Tapper noted that one of the things that he was criticized roundly for was that in the beginning he indicated that he didn’t like the site plan. He never saw a different site plan and he made suggestions.
T/ROCHESTER Page 8
MINUTES OF MEETING June 20, 2006
DISCUSSION ON APPEAL
AMPLE SELF STORAGE (cont’d): c/o Todd Bivona, Special Use Permit for 56,000sf of storage sheds with 1,375 sf of office
Mrs. Carney noted that the applicant reduced the square footage by about 20,000 sf.
Mr. Tapper motioned to proceed to the TB to request the TB to file a Notice of Appeal. Mr. Gaydos seconded the motion. No discussion.
Vote:
Fornal: Recuse Ricks: Recuse
Tapper: Yes Carney: No
Striano: Absent Kawalchuk: No
O’Halloran: Yes Gaydos: Yes
By a vote of 3-2 the Planning Board was to proceed with requesting the Appeal from the Town Board.
Mr. Tapper questioned if because he was the Chairman in this matter would he have the authority to speak to the Town Attorney.
Mr. Futerfas said, absolutely.
PUBLIC HEARING
DAWON HOMES INC.- subdivision to be known as Mount Laurel Estates, 22 lots, Samsonville Road, Tax Map # 60.1-2-2 &3, ‘A’ District
Chairman Fornal and Mr. Ricks came back to the Board.
Mr. Dawson was present along with representatives Barry Medenbach & Ed Sprague.
The Chairman noted that the Board has received 2 reports from Chazen this month. The Third Planning Review letter of Mount Laurel Estates dated June 15, 2006 and the Ecological Review Memorandum dated June 15, 2006.
Mr. Johannessen noted that he had just received the responses to the Ecological Review Memorandum from Michael Nowicki submitted by Medenbach & Eggers.
Mr. Ricks questioned who requested these reports to be done in the first place?
Mr. Medenbach explained that it was US Fish and Wildlife.
Mrs. Carney noted that this is done as part of the Applicants responsibilities in filling out the EAF.
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MINUTES OF MEETING June 20, 2006
PUBLIC HEARING
DAWON HOMES INC.- subdivision to be known as Mount Laurel Estates, 22 lots
Mr. Medenbach explained that when an applicant comes to him, he sends letters out to these agencies to see if there is any significant habitat on the site. This is where a lot of these responses come from, not necessarily from the request of this Board, but as part of their research process into this process. The Indiana Bat is in the whole region for potential habitat and people are given guidelines about what time of year to cut down trees and do clearing and so forth.
Mr. Medenbach further clarified. They contacted the US Fish & Wildlife and the DEC Natural Heritage which keeps tabs of where the local sites are for endangered species. They were contacted as soon as the client came to them to develop this land. They got a letter back saying that there was potential vegetation, and they came back with the Bog Turtle and the Indiana Bat also. So, they hired a biologist right away to report if any of this habitat did exist on the site or if any of these species existed. His conclusion came back and said, no. So he submitted those reports to this Board to say that they took a hard look at these things. There is no legal requirement for them to do that, they took it upon themselves to do it.
At this time Mr. Medenbach and Mr. Johannessen had a discussion/ disagreement as to if a Stormwater Management Plan for disturbing more than 5 acres was technically seeking a state permit, which triggers the necessity of contacting the agencies mentioned by Mr. Medenbach to see if there are any significant or sensitive areas on the site.
Mr. Medenbach asked the DEC and they said that it is an existing General Permit that has been issued State wide for storm water discharge and as long as they comply with their regulations, they are covered under that existing State Permit. They are not seeking a new permit.
Mr. Johannessen noted that the DEC has indicated to him that a State Permit includes the coverage under the Stormwater discharge and that triggers the review under the DEC.
Mr. Johannessen noted that the bottom line was that the PB asked Chazen to review the Ecological Reports submitted by Mr. Medenbach, they reviewed it, and now Mr. Medenbach needs to respond, which he has, so now Chazen will review the responses.
Chairman Fornal questioned the Chazen 3rd review letter dated June 15, 2006.
Mr. Medenbach noted that he has the letter and will satisfy those comments.
The Chairman noted that the office had been notified from neighbor to the site, Paul Champenier, noting that the well and septics are placed in the wrong places on the maps.
Mr. Dawson noted that he had spoken to the previous owner of Mr. Champenier’s home and the well is not visible, unless Mr. Champenier knows where it is?
Mr. Champenier stated that they were hiring someone to dig for its location.
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MINUTES OF MEETING June 20, 2006
PUBLIC HEARING
DAWON HOMES INC (cont’d).- subdivision to be known as Mount Laurel Estates, 22 lots
Mr. Dawson noted that they were still far enough away—even if his well was right on the property line. You would have to assume that the septic is in the front yard because he’s not pumping it and the same with the well because the pipeline is in front of the house.
Mr. Champenier noted that the septic was on the side.
Mr. Medenbach explained that the house that was built on lot 1 exceeded the setbacks for the property lines.
Mr. Dawson displayed on the map where his well and septic were on Lot 1.
Mrs. Carney noted that he is at least 200’ with his septic on lot 1 from the Champenier’s property line—and from the Champenier’s septic and well would be even further, but the Health Dept. requires a septic to be 200’ if its up grade from a well. If its downgrading its 100’.
At 7:50 Chairman Fornal re-opened the Public Hearing.
Mr. & Mrs. Champenier were the only ones that were at the Hearing that requested to speak.
Mr. Champenier was also concerned with the land above them as it is extremely wet. There are water problems that exist on the property. He then distributed a photograph to the Board of a large wet area that he claimed to have taken on Mr. Dawson’s property before he owned it and he stated that it is right above his house.
Mrs. Champenier believes there was a straight slope down from Mr. Dawson’s property.
Mr. Dawson stated that it went up and rises and then went back down—you could see it in the topography in the map.
Mr. Champenier wasn’t sure if his water problems were in direct effect from the water problems on Mr. Dawson’s property, but the water on Mr. Dawson’s property was above them and ran toward them.
Mrs. Carney showed the Champenier’s the 200’ radius from where they claim their well to be to Mr. Dawson’s property. Where Mr. Dawson built on lot 1 is about 400’ away which meets the Health Dept. requirements and every other well and septic are going to be much much further away than that.
Mr. Champenier felt that the pictures he submitted with the sitting water were probably either lots 2 or 3.
Mr. Medenbach believed that this looked like the wood road on the property.
One of the Champenier’s concerns was the over abundance of water already. If you try and dig a hole on their property, even in a drought, as soon as you put the shovel in the ground water comes up.
Mr. Ricks questioned if the applicant was proposing to direct any drainage towards the Champenier’s property?
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MINUTES OF MEETING June 20, 2006
PUBLIC HEARING
DAWSON HOMES, INC. – subdivision to be known as Mount Laurel Estates, 22 lots, Samsonville Road, Tax Map # 60.1-2-2 &3, ‘A’ District
Mr. Medenbach responded that they weren’t allowed to drain anything off on the neighbor’s property and nothing would drain off on the neighbor’s property.
The Chairman asked if anyone had questions, if so the Board would take them and then come back to Mr. Champenier.
Briton Baker was recognized to speak. He wanted to know if there was some sort of map for the public to view.
The Board asked for right now, if anyone wanted to view the maps to come forward.
Alex Miller was recognized to speak. He understood that there was a lack of finding of any endangered species on the property. Did he also understand that there was a State or Federal Law that said if there is an endangered species on the property, during the time that the species vacates the property, then its okay to destroy their habitat?
Mr. Johannessen noted that that is usually a comment that US Fish & Wildlife have when they determine that the habitat may be there, but the species is not there. If the species was there, Fish & Wildlife would be in here and really be setting up a program for the applicant to be following. Right now we are saying, yeah there might be some trees out there that have a bark that they could get into. They find the right habitat, but no presence of the species.
Mr. Johannessen further explained that when the applicant FOILS the US Fish & Wildlife and DEC for the information, and then the DEC responds to them and sometimes they provide a map for a general 5 mile radius of their findings. They have sensitive areas for different species.
Mr. Medenbach noted that this was why they hired a biologist. He wasn’t quite sure what they looked for either when they did these studies.
Mr. Johannessen noted that they have to look for the species during the certain time of year that it would be present.
Mr. Dawson noted that he researched the Begonia—the last time one was seen was in 1920 in Ashokan.
Mrs. Carney noted that most plants that bloom are usually visible by June. A lot of biologists wait to finalize their reports until June.
Mr. Champenier questioned the wetland designation. According to the report, they used the 1987 Wetlands Delineation Manual from the Corps of Engineers and the question was why that was used and not the one that NY State has?
T/ROCHESTER Page 12
MINUTES OF MEETING June 20, 2006
PUBLIC HEARING
DAWON HOMES INC (cont’d).- subdivision to be known as Mount Laurel Estates, 22 lots
Mr. Medenbach replied because that is the official manual for Federal Wetlands. The State has its own and they used their own for their identification. The State actually came out and delineated the wetlands using their manuals. The applicant’s consultant used the Federal Manual and delineated those. The State doesn’t produce a report, they just flag it. They tell the applicant to survey it and put it on a map and then the State (DEC) will sign it to verify it is correct.
Mr. Johannessen reinforced that the applicant would have to submit a survey to the NYS DEC and have them sign it.
Mr. Medenbach stated that Sheet EC2 has been signed by the DEC and the applicant would submit that for the next meeting.
Mr. Johannessen noted that the PB wouldn’t sign the subdivision plat until the wetlands delineation has been signed by the DEC.
Mr. Champenier had a question on # 10 of the EAF regarding hunting. The applicant answered that hunting did not occur on the site.
Mr. Dawson replied that the previous owner allowed hunting, but Mr. Dawson did not. So the answer was ‘no’.
Mrs. Carney reinforced that this property wasn’t open to the public.
Mr. Champenier then questioned the EAF where it said that anticipated completion would be in 2009. That would be 7 houses a year.
Mr. Medenbach clarified that they meant completion to the improvements, such as the road and drainage systems. That doesn’t necessarily include the houses. Mr. Dawson could sell a couple of lots, people could hold them without building on them. Mr. Dawson plans on building 1 house per year and not selling any lots. Mr. Medenbach felt that it would get to the point where Mr. Dawson would sell a couple of lots or build more than 1 house per year.
Mrs. Carney explained that the infrastructures for Storm water Pollution Prevention have to be in place for whatever lots it services before those lots get developed. They may be phased if that is the way the applicant chooses to do so.
Mr. Tapper further clarified that if Mr. Dawson were to develop lots in no particular order—if he planned on building on lots 10, 11, & 12 first, then the roads would have to be in, the Stormwater Management would need to be implemented—everything for those lots would need to be in prior to construction.
Mr. Champenier then questioned the maintenance of the Stormwater Management? Would the homeowners be responsible?
T/ROCHESTER Page 13
MINUTES OF MEETING June 20, 2006
PUBLIC HEARING
DAWON HOMES INC (cont’d).- subdivision to be known as Mount Laurel Estates, 22 lots
Mr. Dawson explained that the individual home owners would be responsible.
Mr. Champenier then wanted to know what the regulations were to ensure it was functioning properly? Were there annual inspections and if there was a substantial amount of water that comes down in a short amount of time someone would inspect that?
Mr. Medenbach stated that Mr. Dawson would have that responsibility to hire someone to inspect that it was being constructed properly. He could hire Mr. Medenbach or someone else that was qualified. He would sign the Notice of Intent with the DEC to ensure that this would get done. He would be responsible until he sells off the last lot. The inspections after a rainfall have to do with construction activity. Once you sign off that the facility is completed and is functional, then you don’t have to have those inspections after every rainfall. The State does require annual inspections.
Mr. Champenier then questioned who would they complain to if there was a problem?
Mr. Medenbach replied, the DEC and they would be out and site the applicant with a violation in a heart beat.
Mr. Champenier questioned the erosion controls while they are doing work. The report mentions using fertilizer in this process. How does that work?
Mr. Medenbach noted that the water treatment does treat that by extending its detention. The basins need to be in place prior to any excavation.
Mrs. Carney explained that the Storm Water gets built first so that when drains and culverts get put in for the individual homes, they have somewhere to go.
Mr. Medenbach indicated that the fertilizers they were talking about were mild and that was only if it was required if the soils couldn’t support vegetation. Most of the time Lime is the only thing that needs to be added—its no different than establishing a lawn.
Another thing that puzzled Mr. Champenier was the Stormwater Management Plan where they explained the amount of discharge. He questioned if reducing the runoff into the State Wetlands by 23% would create a problem?
Mr. Medenbach explained that it was the peak flow that Mr. Champenier was looking out. The peak would be knocked out of the storm. Same amount of water, its just being regulated as to how quickly it gets there. You get different percentages for different storm frequencies.
Mrs. Champenier had a question about clearing as stated on the map.
Mr. Medenbach explained that really just pertained to the road and house sites—anywhere there were improvements to be made, not the entire area.
T/ROCHESTER Page 14
MINUTES OF MEETING June 20, 2006
PUBLIC HEARING
DAWON HOMES INC (cont’d).- subdivision to be known as Mount Laurel Estates, 22 lots
Mr. Miller wanted clarification on a statement that was previously made. This proceeding and Public Hearing were really a result of an application that Mr. Dawson had made to the Town Board for a Variance in the Moratorium. One of the things that he believed that the Town Board notes would reflect from what he believed to be the March Meeting that it was Mr. Dawson’s intention to develop these 22 lots and to do 1 lot at a time. Now he hears that he may be setting up a subdivision in which to sell lots off.
Mr. Dawson never stated that. Mr. Medenbach stated it as his opinion.
Mr. Miller thought that when Mr. Dawson came before the Town Board, he represented it that it was his intention that he would not sell lots off and that he would be building each of these houses. Should the general public be concerned that the general plan that is being proposed with the types of house that will be there… did Mr. Dawson believe he could follow through on his intention?
Mr. Dawson noted that building 1 house per year was his intention, but he can’t guarantee if he passed away what would happen to the land then. He can guarantee that he could put covenants in it that there could be no further subdivision of any of these lots. He can’t guarantee that no one is going to sell a lot.
Mr. Miller didn’t believe that the word ‘intention’ was ever used. He believed that on the application that was made to the Town Board to gain a variance to get through the Moratorium, was saying that ‘I am not selling the lots, I am building them myself’.
Mr. Dawson said that is true. He is not selling lots.
Mr. Champenier asked if this was transferable?
Mrs. Carney noted that once this subdivision was approved, it was approved as is. Any change to any of these lots would have to come back to the PB.
Mrs. Champenier noted that somewhere on the map or someplace it mentioned that within the 100’ conservation buffer there could be utilities and septic and other things and she was concerned if the conservation buffer was really undeveloped?
Mr. Medenbach noted that that conservation buffer is self imposed. Mr. Dawson implemented that on his own. There will be no building, or strip clearing of the land. A driveway may need to cross or a well or underground electric.
Mr. Dawson noted that they aren’t planning on infringing on that buffer, but he needs to maintain the right to be able to do it.
Mr. Johannessen noted that the terminology will specify what can or cannot be done.
T/ROCHESTER Page 15
MINUTES OF MEETING June 20, 2006
PUBLIC HEARING
DAWON HOMES INC (cont’d).- subdivision to be known as Mount Laurel Estates, 22 lots
Mr. Ricks motioned to close the Public Hearing. Seconded by Mrs. Carney. No discussion.
Vote:
Fornal: Yes Ricks: Yes
Tapper: Yes Carney: Yes
Striano: Absent Kawalchuk: Yes
O’Halloran: Not requested to attend Gaydos: Yes
Mrs. Carney motioned to declare the PB Lead Agency. Seconded by Chairman Fornal.
Vote:
Fornal: Yes Ricks: Yes
Tapper: Yes Carney: Yes
Striano: Absent Kawalchuk: Yes
O’Halloran: Not requested to attend Gaydos: Yes
Mr. Johannessen prepared Part 2 of the EAF and the Board reviewed it. He explained that when he prepares an EAF he uses instructions from the DEC. If he can answer yes to a question, then he has to mark ‘Potentially Large Impact’. So, he can understand what Mr. Medenbach is going to have problems with, and he knows a lot of these aren’t going to be Large Impacts, they will just need a brief explanation from the applicant in Part 3. But the way he reads the instructions and the way he has been told to prepare these by the DEC, is if you can answer yes, you have to mark ‘Potentially Large Impact’ and if it’s a maybe you have to mark ‘small to moderate impact’.
Mrs. Carney stated that basically mitigation is being proposed whether or not its small or large.
Mr. Johannessen noted that just by checking column 2 (as indicated by the instructions) it doesn’t necessarily means that it’s a significant impact and that it requires mitigation, it just means it has to be identified in Part 3 by the applicant. If its really small like needing a discharge permit, the applicant just has to say, ‘this is a NYS DEC requirement that we are required to do and this is what we are going to do under that permit.’. For any construction on slopes of 15%, the applicant has to do an erosion sediment control plan, and in Part 3 the applicant can say that they prepared a Stormwater Management Plan in accordance with DEC guidelines. He isn’t trying to complicate anything, he just feels that the applicants need to answer these questions.
Mrs. Carney questioned if Mr. Medenbach had these responses?
Mr. Medenbach has not prepared a Part 3 yet. They only received this information yesterday. He knew that in the past this Board would look at particular items and whether or not it exceeded the threshold as to whether it was small or large.
Mrs. Carney suggested going over the items that the applicant had actual concerns with.
T/ROCHESTER Page 16
MINUTES OF MEETING June 20, 2006
PUBLIC HEARING
DAWON HOMES INC (cont’d).- subdivision to be known as Mount Laurel Estates, 22 lots
Mr. Medenbach noted that there was a very small area where they were building on 15% slopes. 15%slope could be roads. If you were going to build a house with a garage under it, you would need a 15% slope for that to work. He had just produced a slope analysis map where his CAD technician plot it out to a larger scale so they could look at it with the grading plan on top of it where you can see the very little areas that are touching or crossing the 15% slopes. So, he would say that is a small to moderate.
Mr. Tapper questioned what the difference was if the Board decided it was a Potentially Large Impact? What sort of response would Mr. Medenbach have to generate to mitigate that?
Mr. Medenbach noted that that was up to this Board.
Mr. Johannessen stated that the mitigation is the sediment erosion control plan that is already done—all he needs to do is put that in writing in his Part 3 response.
Mrs. Carney agreed that he needed to simply identify it in Part 3.
Mr. Medenbach continued to disagree that he shouldn’t have to respond to every little thing and that the Board should have him narrow it down to which responses they actually want.
Mr. Johannessen didn’t believe that Mr. Medenbach or the Board would have that discretion.
Mr. Johannessen, Mr. Ricks, and the Chairman discussed the instructions as to how to review Part 2 of the EAF.
Mr. Johannessen further explained that if you check ‘yes’ to a question, you had to use the examples to see if they exceeded them or not. If it exceeded an example—they needed to check box 2, ‘Potentially Large Impact’ or if it is less than the example, they needed to check box 1, ‘Small to Moderate Impact’.
The Chairman agreed, most of this has already been addressed, its simply identifying it, and having the applicant identify it in Part 3.
Mr. Dawson was worried that saying something was a ‘Potentially Large Impact’ would trigger further reports needed.
Mr. Johannessen believed that Mr. Dawson was maybe concerned with a Phase 1 Archeology Report. The PB doesn’t have to require that.
T/ROCHESTER Page 17
MINUTES OF MEETING June 20, 2006
PUBLIC HEARING
DAWON HOMES INC (cont’d).- subdivision to be known as Mount Laurel Estates, 22 lots
The Board reviewed part 2 of the EAF.
IMPACT ON LAND
1. Will the proposed action result in a physical change to the
Project Site?
Examples that would apply to column 2:
Any construction on slopes of 15% or greater, (15 foot rise per 100 foot length), or where the general slopes in the project
area exceed 10%.– Yes, Potentially Large Impact, the Stormwater Pollution Prevention Plan would address this.
Construction that will continue for more than 1 year or involve more than one phase or stage. Yes, and this would be a Potentially Large Impact—and is a positive one.
IMPACT ON WATER
4. Will proposed action affect any non-protected existing or
new body of water?
Examples that would apply to column 2:
Other impacts: Disturbance to an ACOE isolated non-jurisdictional
wetland.-Yes, Potentially Large, applicant does not need a permit, but they would like to see the Stormwater Pollution Prevention Plan support this.
5. Will Proposed Action affect surface or groundwater quality
or quantity?
Examples that would apply to column 2:
Proposed Action will require a discharge permit. Yes, Potentially Large Impact. Mr. Medenbach argued that this was an existing permit, they wouldn’t require one because they are seeking coverage under an existing one. The Board agreed with Mr. Johannessen and instructed the applicant to site their reasons as they are stating in Part 3.
Proposed Action requires use of a source of water that does not have approval to serve proposed (project) action. Yes, Potentially Large Impact. For the individual wells and septics.
Proposed Action will allow residential uses in areas without water and/or sewer services. Yes, Potentially Large Impact
6. Will Proposed Action alter drainage flow or patterns, or
surface water runoff? NO YES
Examples that would apply to column 2:
Proposed Action may cause substantial erosion. Yes, Potentially Large Impact, Stormwater Pollution Prevention Plan.
IMPACT ON PLANTS AND ANIMALS
8. Will Proposed Action affect any threatened or endangered
species? NO YES
Examples that would apply to column 2:
Other impacts: The proposed action could potentially impact the habitat of threatened or endangered species. Yes, Potentially Large Impact, the Ecological Report and the review from Chazen would cover this.
_
T/ROCHESTER Page 18
MINUTES OF MEETING June 20, 2006
PUBLIC HEARING
DAWON HOMES INC (cont’d).- subdivision to be known as Mount Laurel Estates, 22 lots
IMPACT ON HISTORIC AND
ARCHAELOGICAL RESOURCES
12. Will proposed Action impact any site or structure of
historic, prehistoric or paleontological importance?
Examples that would apply to column 2:
Proposed Action will occur in an area designated as sensitive for
archaelogical sites on the NYS Site Inventory. Yes, the area is sensitive as per the online inventory for the State. The applicant will have to determine if this application is actually within that area. There are a few different options here.
IMPACT ON GROWTH AND CHARACTER
OF COMMUNITY OR NEIGHBORHOOD
19. Will Proposed Action affect the character of the existing
community?
Examples that would apply to column 2:
Proposed Action will cause a change in the density of land use. Yes, Potentially Large Impact
Development will create a demand for additional community services (e.g. schools, police and fire, etc.) Yes, Potentially Large Impact
PUBLIC HEARING
WAYNE KELDER– subdivision approval for boundary line adjustment between Kelder, Aguis, & Descours, Mill Road, Tax Map #s 68.4-4-22.2, 76.2-1-27.1, & 76.2-1-26.1, R-2 District
At 8:40 PM, Mr. Kelder was present along with Mrs. Descours and Mr. Barry Medenbach who was representing the applicant at this meeting. Dan McCormack was also present as he prepared the map.
Mr. Medenbach explained what was going on. Lot 1 is technically going to be made part of Lands of Elizabeth and Wayne Kelder at the top of the map. Mr. Kelder’s property is essentially land locked, with the exception of retaining a right-of-way over what is listed as lots 2 and 3 on this map. Mr. Kelder wants the right-of-way to the property and Mrs. Descours and Mrs. Aguis don’t really want Mr. Kelder building a road or selling the land and having someone put a driveway in there and using that, so they are all making a swap. The swap will be such that Mr. Kelder will relinquish his rights to lots 2 and 3 to Mrs. Descours and Mrs. Aguis in exchange they are going to give him lot 1 to be made part of Lands of Wayne and Elizabeth Kelder. Lot 2 will be made part of lands of Aguis. Lot 3 will be made part of Descours and Lot 4 is going from Descours to Aguis. Its really just reconfiguring the lots. Mr. Medenbach’s office did not put this map together, but he would mark up revisions that should be added to it to give to Mrs. Descours for her Surveyor.
Mr. McCormack noted that he would make the line solid to reflect the Kelder’s boundaries more clearly.
The Chairman opened the Hearing to the public. There was no comment.
T/ROCHESTER Page 19
MINUTES OF MEETING June 20, 2006
PUBLIC HEARING
WAYNE KELDER– subdivision approval for boundary line adjustment between Kelder, Aguis, & Descours
Mr. Ricks motioned to close the Public Hearing. Mr. Gaydos seconded the second motion. No discussion.
Vote:
Fornal: Yes Ricks: Yes
Tapper: Yes Carney: Yes
Striano: Absent Kawalchuk: Yes
O’Halloran: Not requested to attend Gaydos: Yes
Mr. Johannessen verbally went over Part 2 of the short EAF and would forward a copy to the PB Office for the Chairman’s signature.
PART II – ENVIRONMENTAL ASSESSMENT (To be completed by Lead Agency)
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A. DOES ACTION EXCEED ANY TYPE I THRESHOLD IN 6 NYCRR, PART 617.4? If yes, coordinate the review process and use the FULL EAF.
Yes No
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WILL ACTION RECEIVE COORDINATED REVIEW AS PROVIDED FOR UNLISTED ACTIONS IN 6 NYCRR, PART 617.6? If No, a negative declaration may be superceded by another involved agency.
Yes No
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COULD ACTION RESULT IN ANY ADVERSE EFFECTS ASSOCIATED WITH THE FOLLOWING: (Answers may be handwritten, if legible)
C1. Existing air quality, surface or groundwater quality or quantity, noise levels, existing traffic patterns, solid waste production or disposal,
potential for erosion, drainage or flooding problems? Explain briefly:
NO
C2. Aesthetic, agricultural, archaeological, historic or other natural or cultural resources; or community or neighborhood character? Explain briefly:
NO
C3. Vegetation or fauna, fish, shellfish or wildlife species, significant habitats, or threatened or endangered species? Explain briefly: NO
C4. A community’s existing plans or goals as officially adopted, or a change in use or intensity of use of land or other natural resources? Explain briefly:
NO
C5. Growth, subsequent development, or related activities likely to be induced by the proposed action? Explain briefly:
NO
C6. Long term, short term, cumulative, or other effects not identified in C1 – C5? Explain briefly:
NO
C7. Other impacts (including changes in use of either quantity or type of energy)? Explain briefly:
NO
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D. WILL THE PROJECT HAVE AN IMPACT ON THE ENVIRONMENTAL CHARACTERISTICS THAT CAUSED THE ESTABLISHMENT OF A CEA?
Yes No
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E. IS THERE, OR IS THERE LIKELY TO BE, CONTROVERSY RELATED TO POTENTIAL ADVERSE ENVIRONMENTAL IMPACTS?
Yes No If Yes, explain briefly:
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T/ROCHESTER Page 20
MINUTES OF MEETING June 20, 2006
Mrs. Carney motioned to accept Page 2 of the Short EAF as read into the record. Seconded by Mr. Tapper. No discussion.
Vote:
Fornal: Yes Ricks: Yes
Tapper: Yes Carney: Yes
Striano: Absent Kawalchuk: Yes
O’Halloran: Not requested to attend Gaydos: Yes
Mrs. Carney motioned for Conditional Final Approval with the following conditions:
1. Mylar and original final copies contain each owner’s signature
2. Kelder’s Lot line to be represented as a solid line
3. Chairman can sign off on final maps once submitted
No Discussion.
Vote:
Fornal: Yes Ricks: Yes
Tapper: Yes Carney: Yes
Striano: Absent Kawalchuk: Yes
O’Halloran: Not requested to attend Gaydos: Yes
{NOTE: on June 27, 2006 this motion for Conditional Final Approval was rescinded due to a procedural error. On the same date, it was then issued a Negative Declaration under SEQRA and granted Conditional Preliminary Approval and then Conditional Final Approval with the same conditions as listed above.}
ZBA ADVISORY REQUEST
LOIS KORTRIGHT– Area Variance for vacant property in which applicant is requesting to construct single family dwelling, property only has 25’ of road frontage on Rochester Center Road and
Town Law requires 50’, Tax Map #68.3-2-25.112, R-1 District
Lois and Russel Kortright were present, along with the potential buyers of the property.
Mrs. Kortright explained that in 1989 she and her husband purchased the property and now they want to sell it to this couple with them tonight, but found out that they couldn’t build a house on it because it only has 25’ of road frontage on a Town Maintained Road (Rochester Center). This is a flag lot that they bought from William and Lydia Haynes. It’s +/- 2.75 acres. They had a survey and title search and now they found out from the Code Enforcement Office that they don’t have enough road frontage.
The Chairman questioned the Town Attorney if Open Development would apply in this case under NYS Town Law 280 a. The Town Attorney admits that all the president involves pre-existing non conforming lots, not lots that were created after Zoning was established. This lot was created in 1989 after Zoning was put in place, so the Variance was the way to go.
T/ROCHESTER Page 21
MINUTES OF MEETING June 20, 2006
ZBA ADVISORY REQUEST
LOIS KORTRIGHT (cont’d): Area Variance for vacant property in which applicant is requesting to construct single family dwelling, property only has 25’ of road frontage on Rochester Center Road
Mrs. Kortright noted that she has approached a neighbor about obtaining some land to meet the standard and they don’t want to sell any land. He was in favor of them getting a variance to build their house.
The Chairman highly suggested getting that statement in writing to help prove their hardship.
Mr. Ricks noted that this was only for a single family driveway.
Mrs. Carney felt that other than the year it was created, this seemed like Open Development.
Mrs. Kortright had a letter from Jim Barry, their attorney.
The PB told her to submit it to the ZBA.
Mr. Ricks motioned to give a favorable advisory to grant the Area Variance. Mr. Gaydos seconded the motion. No discussion.
Vote:
Fornal: Yes Ricks: Yes
Tapper: Yes Carney: Yes
Striano: Absent Kawalchuk: Yes
O’Halloran: Not requested to attend Gaydos: Yes
DISCUSSION
FRANK KORTRIGHT– c/o Medenbach & Eggers, SUP for Expansion of Mine, 6 phases of +/- 5.3 acres each, Rochester Center Road, Tax Map #68.3-2-14, R-1 District
The Chairman noted that the NYS DEC has not issued the Negative Declaration or a Notice of Complete Application yet. He asked the Board to authorize him to write a letter regarding the noise. He would like to ask them to review that because they are proposing a 70 dba at a receptors house. The local ambient that they say is 53. That’s a rise of 17. Their own guidance suggests 6 above- that would be 59, not 70.
Mr. Ricks questioned the petition signed by 17 or 18 neighbors who completely surrounded the property in favor of the mine. The Public Hearing last month-not a single neighbor came and the only one that spoke out lived 7 or 9 miles away.
The Chairman noted that it should be an issue as far as procedure because their own guidance suggests 6 above ambient level and they are proposing 17. They are proposing at one phase that it will be 70 dba which is well above the level that even the DEC is allowing as noise guidance. So, as a matter of procedure he asked the Board to authorize a letter to question them to review that and make sure that its within their guidelines.
T/ROCHESTER Page 22
MINUTES OF MEETING June 20, 2006
DISCUSSION
FRANK KORTRIGHT– c/o Medenbach & Eggers, SUP for Expansion of Mine, 6 phases
Mrs. Carney questioned if this had to do with where it is in location to the recipient’s house? Because if the mine is moving further into the site, would that increase it at that location?
Chairman Fornal stated that every increase is over 6, which is the guidance standard from the DEC. That’s the worst one. A letter to have them review it is what he is asking for.
Mrs. Carney asked if this was on the mine site or is the increase at a recipient location?
The Chairman noted that it’s at the recipient’s location. They call it the sensitive receptor, but actually they were on the mine property, closest to the receptor, so its not actually at the receptor’s house. The guidance suggests 6 above ambient level as a maximum.
Mr. Kawalchuck requested something in writing that supported what the Chairman was stating.
The Chairman had a copy of the Noise Study that was submitted by Mr. Kortright.
Mr. Ricks noted that if a letter was written, that it should be emailed or faxed to all members to give their input on before it actually goes to the DEC.
The Chairman noted that it would be just a very general statement because to review it because it is in excess of their standards.
Mr. Tapper wanted to clarify—so, standing up there in the middle of the mine with no equipment running and the birds chirping, the ambient level is 53? And when the trucks start up it increases it to 70? And the DEC says you can only go up to 59?
Chairman Fornal stated that there is a question if there was seepage from the other mines that give it a 53. They did this test during business hours and mentioned something about an ATV, but in actuality its the surrounding mines.
Mr. Gaydos questioned what the noise levels were out of the mines that were crushing?
Chairman Fornal stated that that was approximately 90 dba and it loses 6 dba for every doubling distance.
Basically what this is about is the procedure that the DEC has come up with a noise guidance and all he was asking for was to go to the DEC and say would you please review and make sure that it fits in with your guidance. They have a suggestion that its not anymore than 6 above and it exceeds their own suggestion. He just wants them to look at this because its still open. As soon as they give a Negative Declaration they can’t do anymore because that’s SEQRA. If the PB waits until the Neg Dec it, then they can’t do anything.
Mrs. Carney suggested that the Chairman email his letter and the DEC guidelines to everyone so they could respond and the letter could go out.
T/ROCHESTER Page 23
MINUTES OF MEETING June 20, 2006
DISCUSSION
FRANK KORTRIGHT(contd): c/o Medenbach & Eggers, SUP for Expansion of Mine, 6 phases
The Chairman found the section he was looking for and gave it to Mr. Kawalchuk. He thought that he was being put through a lot just for a letter.
Mr. Kawalchuk noted that he wanted to read it in black & white because everyone has their own interpretations. He wanted to be sure that he agreed with what Chairman Fornal was talking about before he just okayed a letter to go out about it.
Mr. Ricks would have rather seen the Chairman write the letter and bring it in for the Board to say yes or no to.
Chairman Fornal didn’t think that asking to write a letter to the DEC asking them to review their own standards would be such a big thing.
Mr. Ricks stated that the Board is probably a little shell shocked from previous letters from Chairman Fornal.
The Chairman noted that each application needs to be approached like its new and not rely on the past to make determinations.
Mr. Kawalchuk read the section that the Board was discussing and stated that at 6 dba the DEC starts to pay attention and an increase of 10 dba that deserves consideration of avoidance of mitigation.
Is the applicant providing mitigation?
The Chairman was just asking for a letter to the DEC because its in the stage for them to accept these comments from the Town.
Mr. Kawalcuk agreed that a letter could be sent.
Mr. Ricks read part of the report outloud.
Chairman Fornal motioned for authorization to send a letter to the DEC as a matter of procedure to question them to review the noise lever and make sure that its within their guidelines. He would email and fax for member’s input. Mr. Tapper seconded the motion.
Vote:
Fornal: Yes Ricks: No
Tapper: Yes Carney: Yes
Striano: Absent Kawalchuk: Yes
O’Halloran: Not requested to attend Gaydos: No
At this time Mrs. Carney excused herself from the meeting. (9:00PM)
T/ROCHESTER Page 24
MINUTES OF MEETING June 20, 2006
CONTINUED APPLICATION REVIEW
ANTHONY RUSOLO C/O GERAL RUSOLO– Subdivision approval for 3 lots, Granite Road & Project 32 Road, Tax Map# 76.4-2-11, R-1 District
Mr. Gerald Rusolo was present on behalf of this application.
The Board reviewed the revised maps and noted that he revised the EAF as per the Board’s instructions.
Mr. Rusolo noted that he has submitted applications to the Heath Dept. (HD) and they called him at home and said that they approved all the septic systems for the 3 lots. They said that they would send out the approvals in the next couple of weeks.
Mr. Johannessen noted that he was missing the approval box for the HD to sign. Were they going to sign these plans?
Mr. Rusolo stated that he gave them 3 copies of the plan. He wasn’t sure if they signed it or not. Dean Palen, the head of the HD said that everything was fine and that they would get their permits in about 2 weeks.
Mr. Johannessen questioned if the applicant submitted subdivision plans to the HD for them to sign and give back to him?
Mr. Rusolo stated that he gave them 3 copies and that was it.
Mr. Ricks wanted the applicant to see if the HD would stamp these plans. If he is just going to give a permit- then bring that in.
Mr. Johannessen questioned if the HD required the map submitted to be a Mylar?
They did not. The County Clerk was the agency that required the Mylar once they were approved and signed by the PB.
Mr. Ricks and Mr. Johannessen thought that the HD would have to stamp the Mylar copy.
Mr. Tapper questioned if he would have to have the right to farm note on the map.
The Board agreed that he would need to get it revised to have it.
Mr. Rusolo questioned if they would be able to sell Lot 3 prior to getting approvals from the PB? His attorney said that he could.
Mr. Ricks felt that he was supposed to get Final Approval before he could sell it. At the next meeting they could have the Public Hearing and probably approve it that night.
Mr. Johannessen felt that this could be done as an uncoordinated review, so Lead Agency wouldn’t be necessary.
T/ROCHESTER Page 25
MINUTES OF MEETING June 20, 2006
CONTINUED APPLICATION REVIEW
ANTHONY RUSOLO C/O GERAL RUSOLO(cont’d): Subdivision approval for 3 lots
Mr. Ricks motioned for an Unlisted Action under SEQRA. Seconded by Mr. Gaydos. No discussion.
Vote:
Fornal: Yes Ricks: Yes
Tapper: Yes Carney: left at 9pm
Striano: Absent Kawalchuk: Yes
O’Halloran: Not requested to attend Gaydos: Yes
Mr. Ricks motioned for a Public Hearing at the next meeting. Seconded by Mr. Gaydos. No discussion.
Vote:
Fornal: Yes Ricks: Yes
Tapper: Yes Carney: left at 9pm
Striano: Absent Kawalchuk: Yes
O’Halloran: Not requested to attend Gaydos: Yes
This would be an uncoordinated review and therefore declaring Lead Agency would not be necessary.
NEW APPLICATION PRESENTATION
MOIRA FRANKLIN– c/o William Sitorovich, Site Plan Approval for 2 separate lots. 1st
lot proposed to have (1) 2,000 sf Retail Store. 2nd lot proposed to have (2) 2,000 sf Retail Stores, Route 209, Part of Tax Map #69.3-3-25, ‘B’ & R-1 District
John Post was present on behalf of David Rider, PE for this application, with the surveyor, Dan McCormack.
The Board reviewed the maps dated July 26, 2005. Mr. Ricks noted that lot 3 would own the driveway for lot 1 and lot 2, which would have the retail stores on them.
Mr. McCormack noted that NYS DOT would only allow 1 access. Lots 1 & 2 are in the business district and would have a right-of-way to cross over the driveway that is owned by lot 3. There is future development planned for lot 3, so this is why it was configured the way it was. (This is not in the plans at this time).
Mr. Johannessen questioned if the subdivision existed already?
Mr. McCormack answered, that yes, this property has been already subdivided into lots 1, 2, & 3. They did not have to come to the PB because they had 3 lots which were each in compliance with the code.
Chairman Fornal explained that the Board would have to determine if Planner review was going to be required as the thresholds that automatically trigger it aren’t that clear in this instance. So, it should be up to the Board to officially determine this. He felt that there were steep slopes and there may be some issues
Mr. Tapper would like to see Planner review be required for this.
T/ROCHESTER Page 26
MINUTES OF MEETING June 20, 2006
NEW APPLICATION PRESENTATION
MOIRA FRANKLIN(cont’d): c/o William Sitorovich, Site Plan Approval for 2 separate lots. 1st
lot proposed to have (1) 2,000 sf Retail Store. 2nd lot proposed to have (2) 2,000 sf Retail Stores
Mr. Gaydos questioned if they were going to clear property, so that these buildings were in view from Route 209? Did he know the type of retail business that was going to be there?
Mr. Post was unsure.
Mr. Kawalchuck noted that it was flat on top, but behind it, it dropped off a pretty steep cliff. How close was this proposed development to where it dropped off in the back? It was close to a 100 yard drop about 45-60 degrees straight down.
Mr. Gaydos questioned the septics?
Mr. Post stated that this was all in the HD’s hands. They are waiting for a SEQRA determination.
Mr. Ricks motioned for Jan Johannessenn from Chazen to review this application and for Mr. Johannessen come up with an estimate for the first escrow deposit. Seconded by Mr. Gaydos.
Vote:
Fornal: Yes Ricks: Yes
Tapper: Yes Carney: left at 9pm
Striano: Absent Kawalchuk: Yes
O’Halloran: Not requested to attend Gaydos: Yes
Mr. Tapper requested that the details be put on a separate sheet.
Mr. McCormack noted that the current work being done is not on this site, it is on the adjacent parcel of Albert Babcock.
Mr. Johannessen felt that lot 3 didn’t even need to be on the plan, but lots 1 and 2 should be blown up to a larger scale.
The Chairman wanted a clearer location plan to be put on the plan.
Mr. McCormack noted that they have already applied for a NYS DOT permit and that’s why there is only 1 access shown
Mr. Ricks questioned what the grade was of the road?
Mr. Post noted that they would submit a road profile. They weren’t sure what the retail space would be specifically.
T/ROCHESTER Page 27
MINUTES OF MEETING June 20, 2006
ACTION ON MINUTES OF MEETING
Mr. Gaydos motioned to accept the minutes of May 16, 2006. Seconded by the Chairman. All members present in favor.
OTHER MATTERS
Mrs. Carney had previously requested the citation of the mandate for above 4 lots to have buried electric and that comes from 16NYCRR Pt. 100 which is Public Service Commission.
Mr. Ricks brought in documentation from Central Hudson. He noted that the only time that it’s required is if a government authority having jurisdiction is requiring underground facilities. Other wise it’s not required if they don’t want to do it. The other way they do it is they go by trench length. A residential subdivision requires no more than 200 trench feet of facilities per dwelling unit planned. And that counts both sides of the road as you’re going down. If the applicant requests underground, that’s fine. When they put it in, this years fee was $11.52 per foot. This is what Central Hudson charges the developer to put it in. The applicant is entitled to a credit equal to a 100’ per dwelling unit planned to be constructed in a residential subdivision. If he deposits $10,000 and he’s got 10 units in there, every time someone gets electric hooked up to their house the developer gets $1,000 back until he gets all his money back.
Chairman Fornal noted that the Board has to require something on the map that buried utilities would have to be in the right-of-way. The PB’s responsibility ends by saying that it has to be on the map. Harry Willis from the Dept. of State contends that subdivisions that are over 4 lots have to have buried electric. It seems that there is a variance that the subdivider could go through to have above ground utilities.
Mr. Ricks questioned if it was appropriate to recuse himself on that Pre-Application for the retail space for Jeff Freer as he holds the mortgage for a nearby property. He felt that he had a big interest in the project.
Mr. Ricks stated that Central Hudson says that if there is over 200’ average per lot per hook up, then you can go with poles, it’s the applicant’s option. If it’s under 200’ then underground is required. There is also a time frame where the developer gets so many years to do this. So, if the developer sells lots and people just hold onto the lots and don’t build any houses on those lots that money will never come back to the developer. He believed that the deposit runs out after 5 years. He believed that a pole cost $1,500.
Mr. Gaydos motioned to adjourn the meeting. Seconded by Chairman Fornal. No discussion. All in favor.
Because there was no further business to discuss, at 10pm the Chairman adjourned the meeting.
Respectfully submitted,
Rebecca Paddock Stange
Secretary