Planning Board Minutes 02/20/07

MINUTES OF  February 20, 2007, 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:                                                ABSENT:
Steven L. Fornal, Chairman                              Robert Godwin, Alternate(not required to attend)
Shane Ricks                                             Melvyn I. Tapper
Anthony Ullman                                  Nadine D. Carney, Vice Chair
Anthony Kawalchuk                                                       
Robert Gaydos

 

Also present at the meeting was Town Planner, Jan Johannessenn, from The Chazen Companies.  

 

Pledge to the Flag.

 

The Chairman introduced the Board to the audience, noting that this was Mr. Ullman’s first meeting as a Board member.

 

DISCUSSION
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. Dawson was present on behalf of his application.

 

The Chairman noted that Mr. Dawson is requesting a time extension for his Conditional Preliminary Approval. The letter that was received from Medenbach & Eggers requesting such is not quite right. Chairman Fornal spoke to the Town Attorney, Rod Futerfas who said that Mr. Dawson needs to have a letter stating that he is withdrawing phase 2 and phase 3 from the Conditional Preliminary Approval because he’s not going to get it done in one year. Letter dated February 5, 2007 from Medenbach & Eggers wanted the way the conditions were written for the Conditional Preliminary Approval to be clarified. The Chairman noted that he had re-written several of those conditions. Mr. Medenbach states that he wants an extension for the entire subdivision for an additional 6 months. Speaking with the Town Attorney, he says that the Planning Board (PB) can only grant 3 month extensions—not 6 months. Mr. Dawson has conveyed that he would like a Final Approval for Phase 1.  and then will apply for phase 2 and 3 for individual Final Approvals. Chairman Fornal wrote the conditions again with slight variations which he read into the record. He needed a letter from Medenbach & Eggers stating that they were withdrawing phase 2 and 3 from the Conditional Preliminary Approval and that they will re-apply for each of those phases.

 

Mr. Johannessen questioned if the applicant would need to go through the entire process again once they re-applied for phases 2 and 3?
T/ROCHESTER                                                                             Page 2
MINUTES OF MEETING                                                                      February 20, 2007
DISCUSSION
DAWSON HOMES, Inc. (cont’d)     subdivision to be known as Mount Laurel Estates, 22 lots, Samsonville Road, Tax Map # 60.1-2-2 &3, ‘A’ District
The Chairman didn’t believe it would have to be the entire process. This will all be based on what information the Board already has. He would have to double check with the Town Attorney, but he believed there would have to be a Public Hearing.

 

Mr. Johannessen noted that from a SEQRA standpoint, the entire subdivision has been reviewed.

 

Chairman Fornal understood this and noted that everything the Board would do would reference that.

 

Mr. Dawson added that this was why Mr. Medenbach thought the whole subdivision needed to be done at the same time. Mr. Dawson’s intent was always to do this in phases so he could build slowly.

 

Mr. Johannessen didn’t understand why they couldn’t be filed with the County in sections.

 

Chairman Fornal noted that withdrawing the 2 other phases and applying for them separately was the procedure that he was told by the Town Attorney.

 

Mr. Johannessen spoke with Mr. Medenbach and was satisfied with filing the separate sections in the County Clerk’s Office?

 

The Chairman questioned how the applicant would achieve final approval with an unfinished infrastructure?

 

Mr. Johannessen noted that a plat would be filed for lots 1-6 and then when he finished the next 6 lots he would file that plat.

 

Mr. Ricks believed that the point was the Conditional Preliminary Approval only has a certain time line and by the time that the Applicant would get to the 2nd and 3rd phase, the time constraints would have run out.

 

Mr. Johannessen felt that the applicant could satisfy the Conditional Preliminary Approval conditions and Final Approval would be improved in sections.

 

The Chairman noted that the problem is that this is what the Board was presented with first.

 

Mr. Ricks wondered why the Board couldn’t amend some the Conditional Preliminary Approval to comply with doing it in phases and that way the Conditional Preliminary Approval doesn’t  really run out if the Board is linking it to the phases he’s doing.

 

Chairman Fornal asked how you get past the 1 year time frame from Conditional Preliminary Approval.
T/ROCHESTER                                                                             Page 3
MINUTES OF MEETING                                                                      February 20, 2007
DISCUSSION
DAWSON HOMES, Inc. (cont’d)     subdivision to be known as Mount Laurel Estates, 22 lots, Samsonville Road, Tax Map # 60.1-2-2 &3, ‘A’ District

 

Mr. Johannessen explained that Conditional Preliminary Approval was just a time period in which the applicant has to file his final subdivision map in accordance with these provisions. He doesn’t understand why the applicant couldn’t do that within the time frame. Once the final maps were ready, the conditions would clearly state that they would be filed in the County Clerk’s office in sections and when he goes to get the Health Dept. Approval for say, the first 6 lots, and when he would be ready to move on he wouldn’t have to come back to the PB, but he would go file the map with the Clerk’s office.

 

The Chairman emphasized that the Town Attorney said this about 3 times—that he wants the applicant to withdraw phase 2 & 3 and re-apply.

 

Mr. Johannessen noted that if this is the case, it sounds to him that if the Applicant wants to move on to phase 2 he’s going to have to come before the PB and apply for those lots again.

 

Mr. Ricks wanted to know where in the Subdivision Regs was it listed what the Town Attorney said needed to happen?

 

There was nothing in the Code that discussed the procedures for filing maps in sections.

 

Mr. Johannessen noted that in NY State Town Law there is a section that talks about filing a plat in sections. His understanding was that you get Preliminary Approval on all the lots and then it’s specified in the resolution that the plats will be filed in sections.

 

Chairman Fornal noted that this was not specified in the original conditions and this is the problem.

 

Mr. Johannessen noted that in Mr. Medenbach’s proposed conditions in letter dated February 2, 2007 make sense. He suggested that maybe the Chairman talk to the Town Attorney one more time to clarify this.

 

Chairman Fornal noted that it would be more beneficial if Mr. Johannessen could talk to him about this as he is well informed on the subject.

 

Mr. Johannessen felt it was silly to have to go through the whole process for those 2 sections again. Maybe the Town Attorney wasn’t aware that this was at the Preliminary stage and not Final.

 

Mr. Dawson didn’t mind the Board taking their time to find the correct answer to this problem. He was currently working with the Health Dept. for Phase 1.

 

Mr. Ricks noted that Mr. Medenbach addressed the Home Owner’s Association (HOA) in his 2/2/07 letter to the PB. If there was going to be a Road Maintenance Agreement (RMA) in place of the HOA, what would be the means to say who is in charge of maintaining the road? All of these things fall apart unless there is something set in place like an HOA.
T/ROCHESTER                                                                             Page 4
MINUTES OF MEETING                                                                      February 20, 2007
DISCUSSION
DAWSON HOMES, Inc. (cont’d)     subdivision to be known as Mount Laurel Estates, 22 lots, Samsonville Road, Tax Map # 60.1-2-2 &3, ‘A’ District

 

Mr. Dawson replied that he has investigated HOA’s and RMA’s. Newer RMA’s have less problems than older RMA’s. The big issue that the attorneys have with the HOA is if there is no common ground, it’s not a necessary item. It isn’t a required item either. The older subdivisions weren’t required to have RMA’s that have the problems.

 

Mr. Ricks noted that even newer subdivisions have problems. All of a sudden when the last lot is sold there are 20 people there—who’s in charge? Who sets up the account, who handles the money, who administrates the maintenance of the road?

 

Mr. Dawson hasn’t seen any since they started requiring RMA’s.

 

Mr. Ricks was familiar with subdivisions that had problems right now. Once the lots are sold, who wants to be stuck doing it? If there is an official association it has to be done.

 

Mr. Dawson noted that the home owner’s of the property have this responsibility. But, to create a not for profit corporation when there’s no common ground doesn’t (make sense).

 

Mr. Ricks noted that there are common things that need to be maintained. The road, the ditches…

 

Mr. Dawson noted that these things are all privately owned.

 

Mr. Ricks didn’t believe that this was a good thing to take out of the conditions. The Board had a long discussion over this and this was the only way that the Board felt the road would be securely taken care of by forming an HOA.

 

Chairman Fornal agreed and noted that Mr. Dawson agreed too. But in the Town’s code there isn’t anything in the provision to request it.

 

Mr. Johannessen didn’t think it needed to be in the code for the Board to require it.

 

Mr. Ricks felt unless Mr. Dawson could come up with some other form of agreement with some ‘teeth’ in it, an HOA should be required. Mr. Ricks noted that the problem with the RMA is that if someone isn’t chipping in, there is nothing to make him do so other than another neighbor suing. And the developer is gone after all of the lots are sold.

 

Mr. Dawson has lived on a lot of private roads and he believed that if he lived on a private road and it was getting plowed, he would chip in.

 

Mr. Ricks felt that there should be an official legal tool and administration that would make people pay and make sure it gets done.
T/ROCHESTER                                                                             Page 5
MINUTES OF MEETING                                                                      February 20, 2007
DISCUSSION
DAWSON HOMES, Inc. (cont’d)     subdivision to be known as Mount Laurel Estates, 22 lots, Samsonville Road, Tax Map # 60.1-2-2 &3, ‘A’ District

 

Mr. Dawson didn’t believe that an HOA was the way to go. He felt it was a costly process. Mr. Dawson has gone online and researched this. He urged the Board to do the same. Look under HOA’s and check them out. Pretty much they are laid out for condos and open space where a greenway goes.

 

Mr. Ricks stated that many of the newer developments and subdivisions have HOA’s now.

 

Mr. Dawson asked Mr. Ricks to find him one that doesn’t have common ground. He’s checked with several people and he looked into doing it and he was advised against it. All of his stormwater is on a person’s individual lot and they own the road. He would be accepting of another idea. He just didn’t believe in HOA’s.

 

Mr. Ricks needed to see an RMA where it would guarantee it would be done. There’s no entity set up to ensure that someone would chip in their amount. If there is an HOA with money in it—then the association would be able to legally challenge someone to pay their fair share.

 

Mr. Dawson’s only answer to that was that if the guy buys a home and he’s a bum, he’s a bum no matter what you do, he’s going to screw up his neighbors. Mr. Dawson would submit a draft RMA to the Board to view. He has reviewed the one from Sahler Mill Estates (an 18 lot subdivision approved 2-3 years ago). He thought that was a good one that addressed stormwater and things like that. He’s looked at several different things. He also likes to be sure that people can’t re-subdivide the land or find a loop hole around that.

 

Chairman Fornal noted that another problem is the road. He has had a hard time getting an answer. It says in the code that the applicant can put up a bond, but it’s supposed to be approved for an amount by the Highway Superintendent. He talked to Mr. Kelder, Highway Superintendent and he wanted an escrow account and then when pressed on it, Mr. Kelder didn’t really have an answer.

 

Mr. Ricks noted that when the Board approved the subdivision on Lucas Turnpike (Mt. View Stables) they had an engineer give them an estimate and the Highway Superintendent agreed on that amount and that was the amount that was requested for the bond.

 

Mr. Johannessen noted that generally when bonding a road when subdividing, there are 2 options. One is to have the applicant construct the road to the satisfaction of the Town prior to signing of the subdivision. Option 2 is to bond it for the full cost of the construction.

 

Chairman Fornal noted that Mr. Kelder told him he didn’t care for the bonding because—his words were—“you can’t get your hands on it”. He said he likes an escrow account for the full amount, yet he wouldn’t put it in writing.

 

Mr. Dawson could handle the road if it was built in phases, but if he had to have the whole thing in he’d have to bond it.

 

The Board discussed the phasing of the subdivision again. Mr. Johannessen and the Chairman agreed that this would need to be taken up again with the Town Attorney.

 

T/ROCHESTER                                                                             Page 6
MINUTES OF MEETING                                                                      February 20, 2007
DISCUSSION
DAWSON HOMES, Inc. (cont’d)     subdivision to be known as Mount Laurel Estates, 22 lots, Samsonville Road, Tax Map # 60.1-2-2 &3, ‘A’ District

 

Mr. Ricks motioned to grant a 3 month extension to Mr. Dawson’s Conditional Preliminary Approval. Seconded by Mr. Gaydos.
Vote:
Vote:
Fornal: Yes                                             Ricks:          Yes
Tapper: Absent                                  Carney: Absent
Ullman: Yes                                             Kawalchuk:      Yes
Godwin: Not requested to attend                 Gaydos: Yes

 

The Board further discussed the HOA vs. RMA issue. Chairman Fornal noted that all Town’s are starting to require the HOA. Mr. Johannessen felt that there needed to be someone in charge of this subdivision when all was said and done. 22 lots is a substantial subdivision.

 

NEW APPLICATION PRESENTATION
WILLIAM DAMBERG–        proposed 2 lot subdivision in the Queensmont Estates subdivision off of                                                 Queens  Hwy, Tax Map #68.1-4-2

 

Mr. Damberg was present on behalf of his application. Mr. Damberg had come in for a Pre-Application Discussion back in the Fall of 2006. The following is a portion of the September 19, 2006 minutes in which Mr. Damberg first appeared before the Board:

 

Applicant proposes to split +/-8.75 acres into 2 parcels. Queens Hwy separates the lots, so they would both have frontage on a public road. +/-5.5 acres on one side and about 3.25 acres on the other side. Mr. Damberg purchased this property about 4 years ago with the intentions of subdividing. Last year he asked the Building Dept if he could split the 5.5 acres and 3.25 acres that each had frontage on Queens Hwy. The building Dept. said it would be a simple subdivision. He then got driveway permits from the Highway Dept. for both sides and he also hired an engineer to do septic designs for both sides. Applicant does not yet have a survey of the parcel, but wants to get in front of the Board to move things along. Health Dept. Approval has been applied for and has been verbally obtained—waiting on written permits for each lot. He applied with the Ulster County Health Dept.  in early spring. He was under the impression that he didn’t need Planning Board approval until he went back to the Town buildings with his Deed which said he couldn’t subdivide without Planning Board approval. He spoke to the Planning Board Secretary regarding this information and they found out that the parcel was in the Queensmont subdivision. Splitting any lot in a filed subdivision requires further Planning Board Approval. Since that time he has gone to the County building and obtained a copy of the filed subdivision map. On this map there is a note about his lot (lot 2) that access shall not be permitted for the south side of Queens Highway and that he would need to construct a bridge over lot #1 of the subdivision to access the North side. He was aware that he had a right-of-way to get to his north lot, but he felt the access was better in the area that he obtained a driveway permit and less intrusive to the neighbors on lot 1.

 

The planner looked at the map and noted that there was a conservation easement along the north side of the property on Queens Highway, right where Mr. Damberg got his permit for his driveway.
T/ROCHESTER                                                                             Page 7
MINUTES OF MEETING                                                                      February 20, 2007
NEW APPLICATION PRESENTATION
WILLIAM DAMBERG (cont’d)–       proposed 2 lot subdivision in the Queensmont Estates subdivision off of                                                 Queens  Hwy, Tax Map #68.1-4-2

 

Mr. Ricks questioned what should be done now that the driveway is already in place because neither Mr. Damberg nor Wayne Kelder, Highway Superintendent knew about the conservation easement? He believed that the original conservation easement was to protect the view of the water fall up the road. He didn’t believe that where Mr. Damberg crossed the easement was really interfering with that.

 

Chairman Fornal noted that the applicant is requesting a waiver to access the driveway which goes over the conservation easement. If the Board decides to grant this waiver the Town Attorney would have to research how to release the conservation easement.

 

Mr. Ricks didn’t believe that the driveway that the applicant constructed really had any bearing on the waterfall at all.

 

Mr. Damberg suggested releasing the conservation easement only where the driveway was constructed.

 

The Board felt that was reasonable if they were to grant the waiver.

 

The Chairman noted that the other point was that the bridge was over lot 1. The minutes didn’t really clarify why this was required.

 

Mr. Damberg noted that it would actually have to be a culvert.

 

Mr. Johannessen noted that the DEC would determine what type of stream crossing would need to be installed.

 

Mr. Damberg had consulted with the DEC and they actually preferred that he used the existing driveway and not disturb the stream at all.

 

Mr. Ricks read a note from the Queensmont Subdivision map which was provided by the applicant regarding  his lot.

 

The Secretary noted that Mr. Damberg did not have the most recent copy of the subdivision map. The map that Mr. Damberg had was approved by the PB in 1989 and the latest version was approved in 1991 by the PB. The reasons for the new map were directly related to Mr. Damberg’s lot as outlined in the following information compiled by the Secretary:

 

In May of 1989 Queensmont received Conditional Preliminary Approval (CPA) for a 14 lot subdivision. Mr. Damberg’s lot is actually described as #1 and #2 as it was originally intended to be 2 lots (Lot #2 was the northern portion and Lot#1 was the southern portion—Notes on the 1989 CPA Map(pertaining to lots in question) as follows:
·       Lot 2 access is limited to the right of way across lot 14. No driveway or other access is to be established from the frontage of lot 2 along Queens Highway.
·       Lot 1 is to be sold with lot 2 and shall be contiguous ownership. Lot 1 and lot 2 will not be sold separately or to different purchasers.
·       A portion of lot 1 has been tested for suitability for an on-lot septic system and does not appear to have a suitable site for a septic system. Lot 1 is a non-buildable lot until such time as a sewage disposal system area acceptable to the Dept. of Health can be established.
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T/ROCHESTER                                                                             Page 8
MINUTES OF MEETING                                                                      February 20, 2007
NEW APPLICATION PRESENTATION
WILLIAM DAMBERG (cont’d)–       proposed 2 lot subdivision in the Queensmont Estates subdivision off of                                                 Queens  Hwy, Tax Map #68.1-4-2

 

September of 1989 the Final Approval given. In this Final Approved plat, lot 14 was eliminated and made to be lot #1(the following condition should have read ‘lot #1’ instead of ‘lot #14’). Lot #2 (Damberg’s Lot) was now one lot encompassing either side of Queens Hwy.

 

 The maps were signed with following notes pertaining to the lot in question:
·       Lot 2 access is limited to the right of way across lot 14 (1). No driveway or other access is to be established from the frontage of lot 2 along Queens Highway.
~
~
January of 1991 the Final Approved plat was revised to reflect the following notes pertaining to lot 2:
·       ”Lot 2: Access to that portion of Lot #2 located north of Queens Highway is limited to the right-of-way across lot #1. No driveway or other access is to be established from the frontage on the north side on Queens Highway along Lot #2” Access to that portion of lot 2 located south of Queens Highway may be obtained from the frontage on the south side of Queens Highway.”

 

The Chairman noted that the Board should also remember the fact that a prior Planning Board did this with the intent that was specified. Should the Board set a precedent by changing a filed subdivision map? He then read the note from the 1991 subdivision map.

 

Mr. Ricks noted that it would help if Mr. Damberg could get a letter from the DEC stating that they would prefer to see the driveway in the area that it is in rather than disturbing a stream as required by the subdivision map.

 

Currently Mr. Damberg had Health Dept. (HD) Approval for the northern lot and was waiting for HD approval for the southern lot.

 

The Chairman noted that the Town Attorney stated that if the Board decided to grant the waiver to the conservation easement he would need to research how to overturn it. The Chairman was not trying to characterize the Town Attorney’s feelings on waiving this conservation easement, but the Chairman’s impression was that unless the situation in the record changed, it wasn’t really a good idea to change a past approved map because now the Board was into the area of precedents and prior decisions. This was only his impression.

 

Mr. Ricks noted that sometimes logic had to be used. If the driveway is already there and has no effect on the ledges or the water fall—the whole reason the easement was created, why not use the driveway. If the driveway isn’t used, he’d have to go over someone else’s land and disturb a stream. There would be a lot more harm following the notes on the map than using the driveway that Mr. Damberg constructed (that goes through the conservation easement).

 

The Chairman agreed that, yes, logically, on the ground, this is true. But, is this really what the Board should do?

 

Mr. Gaydos questioned who created the easement?

 

The Chairman responded that it was created by the Planning Board.

 

T/ROCHESTER                                                                             Page 9
MINUTES OF MEETING                                                                      February 20, 2007
NEW APPLICATION PRESENTATION
WILLIAM DAMBERG (cont’d)–       proposed 2 lot subdivision in the Queensmont Estates subdivision off of                                                 Queens  Hwy, Tax Map #68.1-4-2

 

The Secretary added that the land owner at the time brought it up to the Board and then the Board wanted it.

 

Mr. Gaydos felt it should be waived especially for the fact that the driveway constructed by Mr. Damberg isn’t even in sight of the water fall. It was a bad move to instill this conservation easement back in 1989. This is a better way to let him have the driveway where he put it whether it’s creating a precedent of changing what other PB did—this is a better way.

 

Mr. Ricks agreed that if you improved something it should be a bad precedent.

 

Mr. Johannessen noted that the Board would have to decide if they felt it best to waive the conservation easement and if they did, they would need to consult with the Town Attorney to see how to procedurally go about it. If the Board does waive this and go with the driveway constructed by Mr. Damberg they may also want to abandon the right-of-way over the stream over lot #1. If this land isn’t flat the Board should also consider requesting topography.

 

Mr. Gaydos motioned to waive the conservation easement based on the above discussion. Motion seconded by Mr. Kawalchuk.
Vote:
Fornal: Yes                                             Ricks:          Yes
Tapper: Absent                                  Carney: Absent
Ullman: Yes                                             Kawalchuk:      Yes
Godwin: Not requested to attend                 Gaydos: Yes

 

The Board instructed Mr. Damberg to have his surveyor take the topography from the original Queensmont Subdivision map and put it on Mr. Damberg’s map. They also told Mr. Damberg to make sure Mr. Ringler (his surveyor) had the subdivision checklist and ensure that all of the applicable items were included on the map.
NEW APPLICATION PRESENTATION
TAROH HOLDING– c/o Medenbach & Eggers, 3 lot subdivision at Old Mine Road, Tax Map#76.10-1-9.1,                                 Industrial District

 

Mr. O’Halloran  was present along with Mr. Ed Sprague from Medenbach & Eggers on behalf of his application.

 

Mr. O’Halloran  explained that in 1978 his father went before the Town Board and made this area an Industrial District. He had presented the Board with a Zoning Permit for this from 1978.

 

The Chairman had questions on this. He wasn’t sure if the ‘I’ Zone language had changed from the 1969 code. The way it exists now, an ‘I’ Zone needs to be applied for each individual use.
T/ROCHESTER                                                                             Page 10
MINUTES OF MEETING                                                                      February 20, 2007
NEW APPLICATION PRESENTATION
TAROH HOLDING (cont’d) –        c/o Medenbach & Eggers, 3 lot subdivision at Old Mine Road, Tax Map#76.10-1-9.1, Industrial District

 

Mr. O’Halloran didn’t believe that this was correct. The ‘I’ Permit was given to the entire piece and as a family they separated it 1981 for a PVC pipe manufacturer. This was separated out from the original parcel and the Town didn’t have a problem. Then it went to Bradford who ran it as a furniture manufacturer and now it’s owned by Barra & Trumbore who manufacture granite and stone countertops which is a 3 acre piece. Sonny Krom’s is also a part of the original parcel and is also an ‘I’ Zone. The property was broken before.

 

The Chairman felt that the use wasn’t necessarily what was granted. If the language in 1969 is the same as it is now, which is not likely…

 

Mr. O’Halloran  argued that there has been no change of use.

 

The Chairman continued that the Code right now for an ‘I’ Zone classification, you have to go to the Town Board for each use. So, he doesn’t know if you can get a 10 acre parcel for an ‘I’ Zone…

 

Mr. O’Halloran didn’t see where this was in the Code. He just read 140-22. He didn’t’ see where you had to go to the Town Board to get a separate use… you go if you want to create a district. He wasn’t looking to create a district, he already had one. If that was applied it would be like not letting a business on anything less than 2 acres. There are many businesses on less than 2 acres. Therefore you’d have to go to the Town Board for a business.

 

Mr. Sprague noted that he had a copy of the 1969 Zoning Code.

 

The Chairman requested that he submitted a copy pertaining to the ‘I’ Zone to the Secretary.

 

Mr. Ricks questioned if they had the ‘I’ District marked on the subdivision map? He didn’t see it.

 

Mr. O’Halloran  explained that Medenbach & Eggers put the regular zones on the map—they didn’t overlay the ‘I’ Zone on the map.

 

Chairman Fornal read from 140-22(B):
‘Application of regulations. Individual uses and structures in a Light Industrial District need not comply with the specific building location, height, lot size and open space requirements of the underlying district. The “I” superimposes the regulations for a Light Industrial District upon the A, R-1, HD and B Districts. The use permit shall be limited to the one industry in accordance with the original application and permit. Any change of or additional industry shall comply with the permit requirements as required by this section.’

 

Mr. O’Halloran  agreed that the Chairman was correct as far as the district. But he wasn’t looking to create a new district.

 

The Chairman pointed out that it said, ‘any change or additional industry…’

 

Again Mr. O’Halloran noted that there would be no change within the district.
T/ROCHESTER                                                                             Page 11
MINUTES OF MEETING                                                                      February 20, 2007
NEW APPLICATION PRESENTATION
TAROH HOLDING (cont’d) –        c/o Medenbach & Eggers, 3 lot subdivision at Old Mine Road, Tax Map#76.10-1-9.1, Industrial District

 

The Chairman stated that there was an additional industry.

 

Mr. Johannessen believed that it would come into play if Mr. O’Halloran  proposed something on one of the new lots.

 

Mr. O’Halloran  wasn’t proposing anything on the new lots.

 

The Chairman reiterated, that if the language in the 1969 Code was the same as the language as the current code, that Mr. O’Halloran  needed to go before the Town Board for each one of those, whether that happened or not, is….

 

Mr. O’Halloran  interrupted, he felt that consistency wise this hasn’t been required by any of the surrounding industrial properties. Again, Mr. O’Halloran  was not looking to create a district. Of course he would have to go before the Town Board to do that. He’s subdividing within a district. That doesn’t apply to a subdivision.

 

Mr. Ricks agreed that this has been done before.

 

Mr. O’Halloran  added that there was no building what so ever being done and no change of use what so ever. Basically its just lot lines.

 

Mr. Johannessen questioned if lot 2 has been created?

 

Mr. O’Halloran answered that every lots have buildings on it accept for lot 2.

 

Mr. Johannessen continued to question if Mr. O’Halloran agreed that if lot 2 was built upon about 10 years down the road, that Mr. O’Halloran would have to go to the Town Board for approval?

 

Mr. O’Halloran stated that a Special Use Permit would be required for any new business.

 

Mr. Johannessen quoted from chapter 140-22(B), “Any change of or additional industry shall comply with the permit requirements as required by this section.”

 

Mr. O’Halloran  says that this is true and if you look at the permit it has been previously approved for manufacturing, retail sales or warehousing. As long as you are within those, he didn’t believe you’d have to apply further to the Town Board. But if you wanted to go outside of those and put up a cell tower or something else, you would have to, but as long as you stay within this prescribed usage he doesn’t agree with that.

 

Mr. Johannessen pointed out that it doesn’t refer to any change to a permit, it says any change of or additional industry.

 

The Chairman noted that this is why this needed to be looked at by the Town Attorney. It needed to be clarified.

 

T/ROCHESTER                                                                             Page 12
MINUTES OF MEETING                                                                      February 20, 2007
NEW APPLICATION PRESENTATION
TAROH HOLDING (cont’d) –        c/o Medenbach & Eggers, 3 lot subdivision at Old Mine Road, Tax Map#76.10-1-9.1, Industrial District

 

Mr. O’Halloran questioned what the Board was going to do about his previous lot?

 

Chairman Fornal thought that what existed is what existed, although while Mr. O’Halloran was sitting at a Code Task Force Meeting, he was aware of anything that may happen regarding Industrial Districts.

 

Mr. O’Halloran  wasn’t talking about that. He wanted to know what the Board was going to do with his existing subdivision of this property? He’s already subdivided this property and it has an ‘I’ on it for Industrial District. Mr. O’Halloran  wasn’t here for himself. He was just going through the motions for some poor little fellow who was just trying to do an organ business, Russell Oliver. He needs this 2 acres because he can’t afford the whole piece. He doesn’t have a lot of money, so this is what they are trying to accomplish for him. But he also knows that it’s a district and the Chairman is suggesting that every business has to go before the Town Board?

 

The Chairman wasn’t here to debate this. This would be a legal issue based on the language of the law.

 

Mr. O’Halloran argued that Chairman Fornal was only applying this way of thinking to the ‘I’ Zone. It wasn’t being applied to ‘B’. If you looked at Section A of Section 140-22, this applies to Business and HD as well.

 

The Chairman replied that ‘B’ has been established by the Town Board.

 

Mr. O’Halloran  argued that in creating districts, the Board approves subdivision lots within those districts.

 

The Chairman noted that ‘B’ Zones are created by the Town Board and they exist. ‘I’ Zones are floating zones that supercede, they go over top of underlying zones. In order to do that an individual needs approval from the Town Board.

 

Mr. O’Halloran  agreed. For example there is a Business District created by the Town Board, which is what we have in many areas of the Town. What the Chairman is saying is that when they come before the Board to divide their property, the Planning Board is sending them back to the Town Board? You don’t do that.

 

The Chairman agreed. No you don’t . You can subdivide, there’s no problem there, but now if you want to use each of those lots as an ‘I’ Zone, he wasn’t sure if that was possible. If this property was divided and it wasn’t ‘I’ Zone for that because of the way the law is set up, Mr. O’Halloran would not be in a ‘B’ Zone. For example, if there was an ‘I’ Zone and someone divided it into 3 lots. 1 lot would be an ‘I’ Zone and the other 2 would be the underlying district.

 

Mr. O’Halloran  understood this. His question was why this principal wasn’t applied to ‘B’ Zones. Because their underlying would be residential or Agriculture?

 

The Chairman replied that the ‘B’ Zone is a Zone established by the mandate of the Town Board. ‘I’ Zones are floating zones.
T/ROCHESTER                                                                             Page 13
MINUTES OF MEETING                                                                      February 20, 2007
NEW APPLICATION PRESENTATION
TAROH HOLDING (cont’d) –        c/o Medenbach & Eggers, 3 lot subdivision at Old Mine Road, Tax Map#76.10-1-9.1, Industrial District

 

Mr. Johannessen clarified that Section 140-22 doesn’t apply to the ‘B’ Zone. This whole section refers to Light Industrial Districts.

 

Mr. O’Halloran was mistaken.

 

The Chairman noted that there was no problem with the subdivision. They had to determine from the law if when this is subdivided, do you get 3 ‘I’ Zones out of it?

 

Mr. O’Halloran noted that the Board gave him 2 last time.

 

Mr. Ricks clarified that what the Chairman was saying was that the question was on lot 2 because there was no building on it?

 

The Chairman questioned if there was an ‘I’ Zone designation for each of those other 2 lots?

 

Mr. O’Halloran  just got 1 ‘I’ Zone for 1 lot. This is what he was saying. The granite manufacturer then would be in a non ‘I’ Zone location. Mr. O’Halloran  owns the ‘I’ Zone, they don’t. Taroh Holdings’ received it.

 

The Chairman noted that then you would get an ‘I’ Zone designation.

 

Mr. O’Halloran continued, Taroh Holdings got an ‘I’ Zone designation for the entire area. Then they cut out the granite manufacturer lot. That is still as an ‘I’ Zone.

 

The Chairman wasn’t sure if that lot should still be classified as an ‘I’ Zone. It depends on the language of the law from the 1969 code.

 

Mr. Gaydos questioned if after the entire parcel was given an ‘I’ Zone and it was cut up and the pieces that were cut up were also given the ‘I’ Zone, why wouldn’t’ these other pieces receive the same treatment?

 

The Chairman explained that if the 1969 Code language was different than the language that is in our current Code then maybe that’s what happened. But if the language is the same as this…

 

Mr. Gaydos continued that what Mr. O’Halloran is saying that he pieces that have been broken off already have continued as an ‘I’ Zone.

 

Chairman Fornal noted that this is the question. These are all industrial uses.

 

Mr. Gaydos thought that this had been researched a while ago that everyone in that area was in an ‘I’ Zone.

 

The Chairman would need to check the 1969 Code for Light Industrial Zone.

 

Mr. Johannessen questioned why the Board would be applying the old code?
T/ROCHESTER                                                                             Page 14
MINUTES OF MEETING                                                                      February 20, 2007
NEW APPLICATION PRESENTATION
TAROH HOLDING (cont’d) –        c/o Medenbach & Eggers, 3 lot subdivision at Old Mine Road, Tax Map#76.10-1-9.1, Industrial District

 

The Chairman replied that this is because this is when it took place. So the Board needs to know the language. If the language allows the division and the lands to all carry on as ‘I’ Zones, then there’s no question. But if the language is the same as we have now, then there’s a question if when he subdivides is it still all ‘I’ Zones, or just one of those becomes an ‘I’ Zone and the other 2 would have to go before the Town Board for an ‘I’ Zone.

 

Mr. O’Halloran didn’t think it would be possible as you need a minimum of 10 acres for something to be an ‘I’ Zone.

 

The Chairman wasn’t sure if Mr. O’Halloran was in an underlying zone where only 2 acres would be required.

 

Mr. Johannessen wondered if Mr. O’Halloran wouldn’t object to leaving this all one lot. He suggested that the Town Attorney review this situation to get his feed back.

 

Mr. O’Halloran stated that the individual interested in purchasing this lot couldn’t afford the whole piece of property.

 

Mr. Johannessen didn’t think that the code was clear in either direction.

 

The Board reviewed the comment letter dated 2/15/07. Did the 50’ right-of-way through the parcel from Old Mine Road to Route 209 exist?

 

The Applicant answered yes.

 

Mr. Johannessen questioned if the applicant planned on getting septic approval for lot 2?

 

Mr. Sprague answered yes.

 

Mr. Johannessen noted that the PB needed to determine of the Full EAF would be required. The applicant submitted a Short Form. He questioned if there were any improvements proposed? Mr. Johannessen didn’t think that an EAF would be required because no improvements were being proposed. And as long as he gets a septic approval saying that lot 2 is buildable there shouldn’t be any segmentation issues.

 

Since lot 2 is going to have access over the right of way there should be some sort of legal documentation or something that will be provided. Mr. Johannessen suggested that the applicants look at the subdivision checklist to be sure that they followed all of the requirements. He doesn’t think that topo or anything should be required as they aren’t proposing any improvements.
T/ROCHESTER                                                                             Page 15
MINUTES OF MEETING                                                                      February 20, 2007
NEW APPLICATION PRESENTATION
TAROH HOLDING (cont’d) –        c/o Medenbach & Eggers, 3 lot subdivision at Old Mine Road, Tax Map#76.10-1-9.1, Industrial District

 

Mr. Ricks motioned to type the action as Unlisted under SEQRA. Motion seconded by Mr. Ullman. No discussion.
Vote:
Fornal: Yes                                             Ricks:          Yes
Tapper: Absent                                  Carney: Absent
Ullman: Yes                                             Kawalchuk:      Yes
Godwin: Not requested to attend                 Gaydos: Yes

 

Mr. Ricks motioned to schedule the Public Hearing for the March meeting. Seconded by Mr. Gaydos. No discussion.
Vote:
Fornal: Yes                                             Ricks:          Yes
Tapper: Absent                                  Carney: Absent
Ullman: Yes                                             Kawalchuk:      Yes
Godwin: Not requested to attend                 Gaydos: Yes

 

NEW APPLICATION PRESENTATION
LEDGE VIEW PROPERTIES, LLC–     c/o Frank Dunn, lot line adjustment b/t lots 13 & 14 in the Sahler                                                      Mill Estates Subdivision, Sundale Road, Tax Map #s 60.4-1-1.223                                                          & 1.224, ‘A’ District

 

Mr. Dunn was present on behalf of his application and explained that he wanted to alter the line between lots 13 & 14 so that a rock ledge will be owned by one lot and not split between the 2. It just makes more sense this way. It won’t affect any septic areas or anything. They’ve already been approved.

 

Mr. Ricks motioned to type the action as Unlisted under SEQRA. Motion seconded by Mr. Gaydos. No discussion.
Vote:
Fornal: Yes                                             Ricks:          Yes
Tapper: Absent                                  Carney: Absent
Ullman: Yes                                             Kawalchuk:      Yes
Godwin: Not requested to attend                 Gaydos: Yes

 

Mr. Ricks motioned to schedule the Public Hearing for the March meeting. Seconded by Mr. Gaydos. No discussion.
Vote:
Fornal: Yes                                             Ricks:          Yes
Tapper: Absent                                  Carney: Absent
Ullman: Yes                                             Kawalchuk:      Yes
Godwin: Not requested to attend                 Gaydos: Yes

 

The Chairman advised the Secretary that the Town of Olive would need to be notified as this was within 500’ of a Town line.
T/ROCHESTER                                                                             Page 16
MINUTES OF MEETING                                                                      February 20, 2007

 

ACTION ON MINUTES OF MEETING
Mr. Gaydos motioned to accept the minutes of December 19, 2007. Motion seconded by Mr. Ricks. No discussion.
Vote:
Fornal: Yes                                             Ricks:          Yes
Tapper: Absent                                  Carney: Absent
Ullman: Yes                                             Kawalchuk:      Yes
Godwin: Not requested to attend                 Gaydos: Yes
OTHER MATTERS
HOMELAND TOWERS

 

The Chairman noted that the situation that the Board has here where for about 8 months Homeland Towers had been going back and forth with the Town Board to put up 2 cell towers that will be on Municipal Property. One will be at the transfer station and one behind the Rainbow Diner at the Town Mine site. It will be offering a personal communication system which is high speed cable, phone, TV… the coverage that they did testing is a huge improvement. Further up Samsonville continues to be a bit of a problem. Because of the time line, Homeland Towers sees its window shrinking.

 

Mr. Ricks requested clarification on ‘time line’.

 

Chairman Fornal noted that they are seeing their business opportunity shrinking.

 

Mr. Ricks noted that in other words they were saying ‘hurry up and approve it or we’re moving on’.

 

Chairman Fornal didn’t want to characterize it that way. The point is that the Town Board has been offered an option. The option is based on one case that is called Monroe vs. The City of Rochester. In that case the Town Board was found to have the authority to by pass its own code. So, an option for the Town Board (TB) is to by pass the code in its entirety and allow this to go through. The Chairman thought this was lousy.

 

Mr. Ricks stated that if this company wasn’t one that the TB didn’t seek out and find, they wouldn’t be talking about bypassing laws.

 

The Chairman wasn’t sure if the TB seeked this company out.

 

Mr. Ricks believed that Councilman Gray had been searching for a company. It just seems like if anyone else came in they would make them go through and dot every ‘i’ and cross every ‘t’ and all of a sudden on this they’re saying…

 

Chairman Fornal was just telling the Board the reality. The reality is that there is an option for the TB to bypass code and simply put it up. What he did was to see if they could get them to agree and review it because Chapter 130 the Telecommunications law of the Town Code does have problems.

 

Mr. Ricks questioned if the Town Board could just supercede this law and just do it?

 

T/ROCHESTER                                                                             Page 17
MINUTES OF MEETING                                                                      February 20, 2007
OTHER MATTERS
HOMELAND TOWERS (cont’d)

 

Chairman Fornal answered yes.

 

Mr. Ricks would rather not stick his nose in it to be truthful.

 

The Chairman clarified that the Town Board doesn’t want to bypass the code, he was just saying that this can be done. The TB wants the PB to come up with a review that is acceptable to all parties.

 

Mr. Gaydos mentioned that except there is a time line involved.

 

The Chairman noted that the Board couldn’t take months and months.

 

Mr. Gaydos stated that everything else takes months and months.

 

Chairman Fornal was speaking in terms of coming up with an acceptable review. The PB is supposed to come up with a review at this meeting.

 

Mr. Ricks didn’t think this was possible, he was just handed his information today.

 

The Chairman noted that this information was in his file.

 

Mr. Gaydos felt that they should just do it properly an go through the proper channels or they could just over ride the PB and do what they wanted.

 

The Chairman noted that Chapter 130 is a problem. The point is that they can’t just say that they need to comply with this chapter because it is a problem.

 

Mr. Gaydos questioned how the PB could process this in one night sitting here?

 

The Chairman thought that everyone came prepared. This information had been sitting in everyone’s files since the previous week. All the PB is doing now is coming up with a reasonable review—they weren’t entertaining approvals.

 

Mr. Gaydos was mistaken.

 

The Attorney for Homeland Towers, Snyder and Snyder went through the code (referenced in letter dated 2/5/07) and they were looking for waivers from Chapter 130. The Chairman ran this by Vice Chairperson Carney and she was pretty good with it except for a couple of items. In going through this the Chairman also printed out a model of a town law for telecommunications from the New York Planning Federation (NYPF).

 

Mr. Ricks understood all of this, but the way he looked at it, this company wanted the PB to waive 16 things. Why doesn’t the TB just waive the whole thing and just do it.

 

Chairman Fornal didn’t think that made any sense.

 

T/ROCHESTER                                                                             Page 18
MINUTES OF MEETING                                                                      February 20, 2007
OTHER MATTERS
HOMELAND TOWERS (cont’d)

 

Mr. Ricks continued that they would normally want anyone that came in here to dot every ‘i’ and cross every ‘t’ and have everything perfect and go exactly by the code.

 

Chairman Fornal stated that the PB needed to keep on task. The task here is can the PB come up with a bonified review.

 

Mr. Ricks stated to tell the applicant to go by Chapter 130.

 

Chairman Fornal stated that the PB can’t go by Chapter 130 because there is legally suspect sections in that law in terms of emissions standards and what they term as being written in a hostile manner, like a 10 day balloon test. That’s in other words written so it can’t be done.

 

Mr. Ricks noted that this law was written by the Town. He knew quite a few people that took quite a lot of time to put this together in accordance with the State. And now someone comes in and wants to waive 16 items. It doesn’t seem right.

 

Chairman Fornal stated that the law was done in 1997 and this is 10 years later, so a whole lot of things have changed on the ground. If you look at the NYPF model law, and you’re coupled with what the letter dated 2/5/07 from Snyder and Snyder is proposing, this proposal is a better review than the model law. There are more elements. The NYPF baseline is nothing compared to the proposal. So, while it does take off some sections, if you look at it, it still does give the PB quite a bit of oversight. They get almost a full site plan and minus these problematic areas of Chapter 130, he believes the PB has a pretty good review.

 

Mr. Kawalchuk questioned if once the PB started the process could the TB just by pass it then?

 

The Chairman noted that what happens would be that the TB would have to waive the sections that would be agreed upon to be part of the review. Then the PB would be going back over Chapter 130 Sans the waivers.

 

Mr. Ricks questioned if there was anything in the law that said you could waive stuff?

 

Chairman Fornal noted that this would be based upon the precedent of Monroe vs. the City of Rochester. And that was an appeals case that has been on the courts for 20 years and it is on the second Dept. and is a very good case. The Board is not here to discuss the merits of that or the legal opinions. This is what the Town Attorney says is doable. Now the Town can do it in whole, or in part. If the Board wants to be a part of this, which they should. The Board owes it to the Town to be part of this review. If he looked through this and it was completely gutted, he would agree, but its not. He thinks they do get a review and they do certainly get a better review than the model law. The PB can either be a participant and do what they can or they just abandoned what he feels is a responsibility of the Board.

 

Mr. Ricks felt that the whole thing is like a deal. There are time frames set up and if the Board doesn’t follow it, they’ll pull out…

 

Chairman Fornal noted that the coverage has increased, there are more services and the Town is going to get money.
T/ROCHESTER                                                                             Page 19
MINUTES OF MEETING                                                                      February 20, 2007
OTHER MATTERS
HOMELAND TOWERS(cont’d)

 

Mr. Gaydos wanted to know what service would be on this tower.

 

Chairman Fornal replied that Time Warner has promised and promised and has delivered the Town nothing.

 

A member of the public questioned if this would help out for emergencies such as fires and ambulances.

 

Chairman Fornal replied yes, those would be included. And this is a benefit to the Town.

 

Mr. Ricks brought up the time frame again.

 

The Chairman wasn’t talking about the time frame. It is what it is. So, the PB can either participate or not. He didn’t know what the time frame was. He knew that there was pressure to get this done. There were several ways to do it. Do nothing and let them do whatever. Or become a part and try and get a review. As a PB he felt that this was their responsibility to do that. He didn’t see not doing a review.

 

Mr. Ricks has sat here so many times and he’s listened to Bill De Graw or Francis Gray or somebody say it’s the law, you can’t waive it. They waived that in the PB’s face so many times and now all of a sudden there is a law here that was written just for cell towers and now a company comes in and they want 16 waivers and the Town Board is pressuring the Planning Board to give all these waivers.

 

The Chairman reminded Mr. Ricks of Chris Kelder’s application for Mini Golf. He got more than 16 waivers from the Board. Its done and its not like it’s the only time things have ever been waived.

 

Mr. Ricks noted that in the subdivision regs you are allowed to waive things.

 

Chairman Fornal stated that the Town Attorney is saying that this is legal for the Town Board to do.

 

Mr. Kawalchuk noted that there are 2 different things going on here. Mr. Ricks is saying not to do anything and the Chairman is telling the Board that they should do what they can even if this is only what the PB is allowed to do.

 

Chairman Fornal noted that its not a matter of what the PB is allowed to do, its what does the PB feel? If the PB feels that they want to ask for the whole chapter 130, that’s what they’ll do as a whole. But he did know that they would throw it away. So what he was saying is that the PB should go looking through Chapter 130 and see what it really valuable to the Town to consider.

 

Mr. Gaydos questioned if in Mr. Fornal’s opinion that those 16 requested waivers are not of value?

 

Chairman Fornal stated, as opposed to no review at all, they were not.

 

Mr. Gaydos then wanted to know if this just meant that the PB was just going to go through the motions to make it look good?
T/ROCHESTER                                                                             Page 20
MINUTES OF MEETING                                                                      February 20, 2007
OTHER MATTERS
HOMELAND TOWERS(cont’d)

 

The Chairman said, no—there would be a review. It really seems that in talking to members of the Board, most of them didn’t review the materials they are discussing tonight.

 

Mr. Gaydos did not. Mr. Ricks did not.

 

Mr. Ullman has read through the telecommunications law and he doesn’t know that much on the subject, but he does understand by reading it that some items do seem onerous and some seem good. He understands where this company is coming from. It seems to him that if the Town’s Attorney has given the opinion that the PB can do a modified review then he doesn’t see the downside of doing it.

 

The Chairman noted that the Attorney that proposed the 16 waivers in letter dated 2/5/07 came up with the following:
1.      Site Plan Checklist: Providing a full site plan in accordance wit the site plan checklist is acceptable, with the understanding that items such as topography, soil types, exiting utilities, easements, water bodies and wetlands, will generally be limited to the project site, rather than the entire parcel.
2.      Section 130-4 and 130-8: The Planning Board will conduct the review of the applications without charging consultant fees to Homeland.  The Chairman stated that he has talked to the Supervisor and she said that Homeland has agreed to submit money for Chazen review.
3.      Section 130-6(B)(1)(2) & (3): Need for the sites was demonstrated drive testing and repeaters are not feasible. The Chairman has been at some of these meetings and he did see their drive testing. The repeaters are in Chapter 130 are not an issue. They are not going to need them. Repeaters are the smaller poles that they bounce it across and that’s not going to be involved.
4.      Section 130-(6)(C)(1): A full EAF has been submitted to the Town. Relief from a Visual EAF Addendum, aeronautical studies and calculations relating to service coverage and power levels is requested. Visual renderings will be provided. The Chairman noted that Mrs. Carney felt that the visual EAF addendum should be provided. Mr. Johannessen said that its only 2 pages and is somewhat helpful, but the visual rendering and balloon testing will be more relevant. Balloon testing is where they float a balloon at the height of the tower so people can see it. Visual EAF Addendum is where they identify areas in Town where it will be visible. Then the float a balloon and go in those areas, determined by the PB. Then they go and take digital photos of the balloon and superimpose a tower onto a visual rendering so you can see how the towers look from these vantage points. This will be provided. Chairman Fornal questioned if Mr. Gaydos could see the Rainbow Diner from the look out on 44/55. (Mr. Gaydos is extremely familiar with many areas of the Town and their physical features and is often called upon to give his opinions on such matters).
        
        
T/ROCHESTER                                                                             Page 21
MINUTES OF MEETING                                                                      February 20, 2007
OTHER MATTERS
HOMELAND TOWERS(cont’d)
Mr. Gaydos noted that you couldn’t see the Diner as there was blockage of trees. But you could see the  Cell tower. You’d be able to see the whole thing. You can’t see the Rainbow Diner because its hid       because its in too close of proximity to buildings and trees. You see the back of it and the hill. You can      see that field where the tower would be located. He believed that you could see if from the base. The last      time a cell tower was put up in the Town was 10 years ago. It was just before he got on the Board. He   recalled hearing things near riot stage when there were Public Hearings for the tower. In the last 10   years the PB has had some controversial things come before the Board and they have had some Public    Hearings how they have been carried over and over. That trailer park that the Board reviewed had        about 5 Public Hearings. They had to be held in the fire hall. He felt that the company could forget    about their timeline if they went through this review and had a Public Hearing. If the Town Board really        wanted to romance this company and wanted them here, they may as well just put it up. Mr. Gaydos felt   it would take about a year of review.

 

        The Chairman noted that there is a main difference. The prior tower reviewed was in a residential area.         That makes a huge difference.

 

        Mr. Ricks stated that there were residences all around these proposed towers also. Mr. Gaydos agreed.

 

        The Chairman noted that it was in the Town’s mine.

 

        Mr. Gaydos noted that the tower that is on Rochester Center Road is in a more secluded, desolate area   farther than people than these are. This thing has houses within 250’. They’ll be saying radiation is   killing them and this and that and the other thing. Mr. Gaydos felt they were opening a can of beans.

 

        Mr. Ullman noted that some cell towers can be awful. Where he’s from in New York City Fordham put       one up that is just awful. Unless these things are done right, even in a place where they aren’t visible,       these things can cause awful destruction. But that’s more of a substance issue. Mr. Ullman had a lot of         reservations about cell towers.
        
        Mr. Gaydos felt that they would have 3 Public Hearings minimum.

 

        The Chairman noted that maybe they would.

 

        Section 130-6(D)(2): The towers will initially be on speculation. This is one of the things in Chapter 130      that says that you can’t speculate.

 

        Mr. Ullman wanted to know why the PB would be competent to make this type of determination?
 Mr. Ricks read Section 130-6(D)(2):    “If the applicant is not simultaneously applying for a personal wireless service facilities special permit, it shall provide a copy of its existing lease/contract with a personal wireless service provider. A tower construction special use permit shall not be granted for a tower to be built on speculation. “
Chairman Fornal noted that they are more or less saying that its not speculation because they have
people, but they’re not going to commit to that.
T/ROCHESTER                                                                             Page 22
MINUTES OF MEETING                                                                      February 20, 2007
OTHER MATTERS
HOMELAND TOWERS(cont’d)

 

6. Section 130-6(D)(3)(b): We request that contours and other information within 2000’ of the tower be based    on existing USGS data.

 

7.  Section 130-6(D)(3)(c): A survey plan will be provided but relief is requested from the strict requirements of this section in lieu of a more practical survey.

 

Mr. Ricks questioned that what this letter was saying is that minus these 16 items they will be following everything else in Chapter 130?

 

The Chairman answered, yes. And the Site Plan checklist.

 

Mr. Ricks questioned if they were going to get a review like Mr. Johannessen does for other applicants that he reviews with pages and pages of comments. When he goes through this 130 and they start handing in maps, they’re going to be going back and forth with this fellow from Chazen for months and months and months just like everyone else.

 

Again, the Chairman noted that this wasn’t the Planning Board’s issue. If this becomes a problem for this company and they withdraw, so be it.

 

Mr. Gaydos didn’t think this was a really good place for cell towers to begin with and he’s a pretty liberal guy when it comes to cell towers.

 

8. Section 130-6(D)(3)(e)[3], [5], and [6]: Foundation details are typically provided after the final site plan has been approved and prior to the issuance of a building permit. Relative heights of the trees are impossible to accurately depict on a site plan, but will be depicted in the visual renderings. Modular design of the tower will be dependent on the final approved design. Full tower drawings can be submitted as part of the building permit process. The Chairman noted that they will also have to decide on the design. There’s a conifer tree and the other ones are lattice or the mono pole.

 

9. Section 130-6(D)(3)(g)[1], [2], [3], and [4][a] and Section 130-6(D)(3)(h): Sight line drawings tend to be highly inaccurate and misleading. Viability and alternative tower designs will be better analyzed through compliance with Section 130-6(D)(3)(g [4][b]. Section 130-6.D(3)(h) of the Wireless Law requires a balloon test for 10 consecutive days, 24 hours a day. From a  practical standpoint, such balloon nest is not feasible since it is likely the balloon would pop over that extended period, or drift potentially creating a false impression as to height and location. Normally a balloon test is conducted over a 4 hour period.  The balloon is constantly monitored and photographs are taken and used to create accurate visual renderings.
The Chairman noted that Mrs. Carney also felt that was a little bit of a constrained time. He was thinking more of a weekend so that everyone could be able to see it.

 

Mr. Ricks noted that some of these things like # 9 wasn’t’ just waiving one thing, they were waiving a number of things. If you look in the total number of waivers here they may have 16 things marked, but if you add up all of them here, there’s quite a bit being waived. There can be 3 or 4 different conditions in the law. In the next one they are eliminated a and b both.

 

T/ROCHESTER                                                                             Page 23
MINUTES OF MEETING                                                                      February 20, 2007
OTHER MATTERS
HOMELAND TOWERS(cont’d)

 

The Chairman showed the Board by using red marks in Chapter 130 of what this letter is actually asking for. They are asking for some but there is plenty left along with the site plan review. He believes that what they ask for is reasonable based no the fact that this law is what it is right now.

 

Mr. Ullman questioned #8. is this saying that the Tower design is only subject to building dept. approval ?

 

The Chairman noted that this was referring to the foundation and guide wire set up—and this is subject to PB approval.

 

Mr. Ullman then questioned #12—why did they need 150’?

 

The Chairman noted that it starts at 120’ and they wanted to add 3 co-locations.

 

Mr. Ricks stated that this is within 700’ of a Business District.

 

Mr. Gaydos felt it would be about 700’ – 1000’ off of Route 209. He was very familiar with the area.

 

Chairman Fornal noted that these are some of the things that the Town Attorney said not to worry about to be waived.

 

Mr. Ricks noted that on #15 sections M & N are 2 pages worth of things they want to waive.

 

This property is municipal property and the underlying zoning is R-2 according to the Chairman.

 

Mr. Gaydos wanted to know if the Town had a mining permit for that site.

 

The Chairman informed the Board that the Town did have a permit.

 

Mr. Gaydos noted that its bordered by all residential property.

 

Chairman Fornal continued to note that sections M & N as referred to by Mr. Ricks didn’t apply or was on the verge of being hostile. A lot of them don’t apply and that’s why they are asking them to be eliminated.

 

Mr. Gaydos questioned if anyone had driven down Route 209 in the Fall and looked through those fields in the area—it’s a beautiful area.

 

Chairman Fornal noted that the point is that the Board goes through their review and then the Board has to make a decision for a Special Use Permit. See what comes up. Based on the reality, this is about the best the Board can do and he thinks they should do it.

 

Mr. Ullman didn’t care for #14 and having the tower lighted in the future dictated by the FAA.

 

Mr. Gaydos didn’t understand why the Town and why this company doesn’t look for a piece of higher ground?

 

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MINUTES OF MEETING                                                                      February 20, 2007
OTHER MATTERS
HOMELAND TOWERS(cont’d)

 

Chairman Fornal noted that they keep talking about a new form of technology where they don’t have to be on higher ground.

 

Mr. Gaydos noted that the Chairman had already said that this won’t work on Upper Samsonville Road and that’s because there’s a mountain in the way (hills),. So he would think that you would want to get them on the highest possible ground.

 

The Chairman noted that one of the things they were going on is that its on Municipal property. Chairman Fornal has heard that they are talking that the Town is going to get between $12,000 and $16,000 per month per tower. He’s also heard it will go toward the tax levy.

 

Mr. Gaydos hoped if it went there that there would actually be substantial improvement of services.

 

When the Chairman saw the coverage area it was pretty impressive. He assumes its all true. There would be another tower proposed at the transfer station.

 

Mr. Gaydos could more visualize that spot as there’s more height over there and its kind of hid away and there aren’t a lot of houses.

 

The Chairman noted that they did a crane test where they hoisted something of that height and people that saw it didn’t think that it stuck out as much as they thought it would. He didn’t see it, its just what he heard.

 

Mr. Ricks noted that this application is different than anything they’ve dealt with before. There is a company coming in saying, here’s our time frame and here’s what you have to have us do or we’re going to walk.

 

The Chairman agrees, but the PB has an opportunity here to be involved.

 

Mr. Ricks doesn’t think they should be rushed through and they should be able to waive things as they go through it.

 

Mr. Gaydos thought the Board should motion to have a full review and offer that and see how it plays out.

 

The Chairman stated that they had to grant the waivers first because the PB doesn’t decide on them, the TB does.

 

Mr. Ricks wasn’t doing it. It wasn’t’ the right way. If they ever did this on any other project, the people on the TB would have a fit.

 

The Chairman was talking about reality. Did Mr. Ricks want to review it or not? That’s what it comes down to.

 

Mr. Ricks wanted a full review, not with all of the waivers.

 

The Chairman noted that Mr. Ricks would rather have it go up any old way.

 

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MINUTES OF MEETING                                                                      February 20, 2007
OTHER MATTERS
HOMELAND TOWERS(cont’d)

 

Mr. Gaydos stated then the TB can take the heat. Mr. Ricks agreed. He wouldn’t be involved in their game.

 

Mr. Ullman believed that some of the things in the law were a little excessive in terms of what should be required. If the Town Attorney says it’s a valid procedure to go ahead with a more limited scope that everyone believes would be efficient, he didn’t see any downside to that unless everyone thinks that the way the law written is exactly what should be and there is nothing in it that’s unreasonable. He thought that there were things that were excessive.

 

Mr. Gaydos agreed with Mr. Ullman about things being excessive.

 

Mr. Ricks noted that its funny how Mr. Damberg’s conservation easement is harder to do than a cell tower.

 

Mr. Kawalchuk questioned if they did the partial review, might it be bypassed anyway? If it takes too long?

 

The chairman noted that it may, but what he is emphasizing is that they model law that they NYPF puts out is less restrictive than what they are agreeing to.

 

Mr. Ullman agreed adding that this is only a review, its not saying that anything is going to happen, it could be turned down. He has reservations about cell towers. Its just a question at this point if its an appropriate procedure.

 

Chairman Fornal agreed that it was a Special Use Permit and up to the Board to approve it.

 

Mr. Ricks motioned for a full review and to make waivers as they do the review. Discussion:
Chairman Fornal noted that Mr. Ricks wasn’t getting the point that the Board can’t waive things.
Mr. Gaydos would want to second the motion with the stipulation that waivers get made as the board goes along.
Mr. Ullman added that if the Board doesn’t do something at this meeting then there isn’t going to be a review at all.
Mr. Ricks noted that Mrs. Carney had reservations about a few of these things so far as did Mr. Ullman and Chairman Fornal.
The Chairman agreed and noted that they would be adding their concerns as part of the review process. He wanted to add the 2 day balloon test and the EAF Addendum and they may go back and say no, they won’t do these additional items, so there’s the end of the story. He would think that this would be a little more constructive than not doing anything.
Mr. Gaydos agreed noting that some review was better than no review.
The Chairman re-iterated that if you looked at the model law, this review that they are negotiating, is far better.
Mr. Ricks wanted to be able to review it as the law says.
Mr. Kawalchuk agreed with Mr. Rick’s theory, but it just wasn’t possible. By not doing any review, it just wipes the PB out of any review any way.
Mr. Ricks noted that the company just wants the PB to think just going to jump up and go away. Even if the PB voted it down, he felt the company would just do it anyway.
Mr. Ullman felt that if they were recommending something that they thought was a good review…
T/ROCHESTER                                                                             Page 26
MINUTES OF MEETING                                                                      February 20, 2007
OTHER MATTERS
HOMELAND TOWERS(cont’d)

 

Mr. Gaydos interrupted and added if there is no review and the Town Board makes this waiver, they’d still have to come in for Site Plan Review, correct?
The Chairman answered that no they would not.
Mr. Gaydos didn’t think this would set a good precedent.
This is what the Chairman has been trying to say.
Mr. Ricks remained that if the PB didn’t have full review, he didn’t want any part of it.
The Chairman asked if Mr. Ricks felt that this was what was in the best interest of the Town and its people?
Mr. Ricks noted that the Town Board would decide what was in the best interest of the Town then.
The Chairman felt that the PB had an opportunity to fulfill the function of a Planning Board and Mr. Ricks didn’t think that was worth it?
Mr. Ricks replied that there’s a company telling the PB there’s a deadline and all of these thing they weren’t going to do in the law.
The Chairman responded that the Town’s law is hostile and more than legally suspect. It wouldn’t hold up in court.
In Mr. Ullman’s review of this material there were some things that he didn’t like.
Mr. Kawalchuk preferred to go along with the Chairman’s plan and if its still denied at least the PB knows that they tried to do what they could. He agreed with Mr. Ricks’ theory, but the Board wasn’t going to get anywhere with that.
Mr. Ricks felt that this was a big game by that company.
As there was no second, Mr. Ricks’ motion died.

 

Chairman Fornal noted that he would like to make a motion to add a few points and to accept the modified review.

 

Mr. Ullman didn’t see how it was the Planning Board’s place to recommend the speculative part of this. He didn’t really see that as a Planning Board function. That’s a real substantive thing.
Mr. Ricks noted that the contract should be in there too. They’re saying that they don’t have to come in and revalidate their permit in 3 years.
The Chairman isn’t sure about that one.
There were too many ifs and I don’t knows in that whole letter.
The thing that bothered Mr. Ullman was the lighting requirement with the FAA. If they do have to put in lighting under the FAA regulations, that really changes everything. That’s not a procedural review, that’s very substantive. This is something he’s not comfortable with.
The Chairman didn’t think the PB could have any say here. If the FAA required something the Board really didn’t have a say in that.
Mr. Ullman felt that they we could be stuck with lights.
Chairman Fornal really didn’t see that happening.
Mr. Kawalchuk has friends who’ve had to have repeater towers lit at about 75’ in Hopewell Junction. There had to be lights put on in certain places. He wasn’t sure of the legalities of it involving the FAA, but they said they had to do it.
The problem for Mr. Ullman is that if they took it out right now, that would remove it from public debate. As a member of the public, this would be important to him to know if there would be lights on the things. He has questions as to the competence of this Board to waive that requirement.
T/ROCHESTER                                                                             Page 27
MINUTES OF MEETING                                                                      February 20, 2007
OTHER MATTERS
HOMELAND TOWERS(cont’d)

 

Mr. Gaydos would like to see some sort of review to slow it down. He doesn’t like the idea of being pressured with a window of time.
The Chairman explained that part of the window of time for the PB tonight is that the Town Attorney is leaving for 2 weeks.
Mr. Ricks questioned why the company wouldn’t wait 2 weeks?
The Chairman was saying that this needed to be done because the Town Attorney is going to go back to Snyder and  Snyder and then this whole process starts and plus they have to do a whole bunch of stuff with the Town Board to get this going. Bottom line is the PB has a responsibility and they can fulfill it as much as they can and he thinks they should do that.

 

Chairman Fornal motioned to accept Snyder and Snyder’s letter dated 2/5/07 with the following modifications:
#9 regarding the balloon test the Chairman wanted it for a weekend as opposed to a 4 hour period.
#4 regarding the visual EAF Addendum, it should be included.
Mr. Ullman felt this was a very substantive requirement regarding the towers not to be built on speculation. He wasn’t sure this was something that the PB could waive.
The Chairman thought that the Town Board would be handling this aspect and the new code coming out would address these lapses.
Mr. Ricks felt this was weird where the Town Board has been talking for the past 2 years about cell companies coming in and now all of a sudden the first time the PB sees it the company has a gun to the PB’s head saying that this needs to be done tonight.
The Chairman disagreed. This company has been involved with the Town for 8 months. He has gone to these meetings and has seen their presentation.
Mr. Ricks wanted to know why the PB was put on the spot tonight?
The Chairman wasn’t sure what the time frames were and Mr. Ricks had this information the whole weekend.
Mr. Ricks stated that he just picked his folder up this morning.
The Chairman thought Mr. Ricks should be coming to the meetings prepared.
Mr. Ricks did read the material.
The Chairman didn’t understand Mr. Ricks’ problem then.
All of this was Mr. Ricks’ problem. He’ll show his opinion in the vote.
Mr. Ullman still didn’t feel comfortable being able to waive #14 as he felt that the Board should at least be able to ask for a visual rendering of what these lights would look like as required by the FAA on a 150’ tower.
Mr. Kawalchuk and the Chairman both agreed that there was no way to change that though because its regulated by the FAA. The PB could suggest heights.
Mr. Ullman questioned if there was anyway to shield the lighting.
Mr. Kawalchuk believed that if they wanted it lit up they would want them to be seen.
Mr. Ullman understood, but maybe shielded from the ground.
The Chairman didn’t think that they could control this.
Mr. Gaydos didn’t really think that a red light or green light would be so intrusive.
The Chairman thought that asking for a visual rendering of this would be acceptable to ask for.
Mr. Gaydos didn’t think they would accommodate this request.

 

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MINUTES OF MEETING                                                                      February 20, 2007
OTHER MATTERS
HOMELAND TOWERS(cont’d)

 

The Chairman noted that this would be the final wording of the motion: As presented by Homeland
Towers to accept their review with the following additions:
#4 to Add the EAF Visual Addendum.
#9 to require a 2 day balloon test on a weekend.
#14 to require a visual rendering on what the FAA required lighting would look like on a 150’ tower.
Motion seconded by Mr. Kawalchuk.
Vote:
Fornal: Yes                                             Ricks:          No
Tapper: Absent                                  Carney: Absent
Ullman: Yes                                             Kawalchuk:      Yes
Godwin: Not requested to attend                 Gaydos: Yes
Mr. Gaydos wanted to state that he still doesn’t feel right about giving the PB partial review.

 

Mr. Gaydos motioned to adjourn the meeting. Seconded by Chairman Fornal. All members present in favor.

 

As there was no further business to discuss, at 9:30 PM Chairman Fornal adjourned the meeting.

 

                                                                        Respectfully submitted,
                                                                        
                                                                        Rebecca Paddock Stange, Secretary