MINUTES OF December 16, 2008 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 Chairman Tapper.
PRESENT: ABSENT:
Melvyn I. Tapper, Chairman Michael Baden
Shane Ricks, Vice Chair Don Dunn, Alternate
Anthony Ullman Leon Smith
Robert Rominger Anthony Kawalchuck
Also present were Town Planner, Tim Moot and Town Attorney, Mary Lou Christiana, Esq.
Pledge to the Flag.
FINAL DECISION
MARK REHNBORG/ INGRID PESSA & IAN MERKEL– Amendment to Granite Estates Section II Subdivision including Subdivision Approval for lot line adjustment and relocation of right-of-way to Minnewaska Trail, Sidney Street & Minnewaska Trail, Tax Map #s84.7-1-19.2 & 17, in an R-1 District of the Town of Rochester
Chairman Tapper noted that Mr. Rehnborg had submitted new maps as were part of the Conditional Preliminary Approval conditions. He and Mrs. Christiana, Town Attorney, both viewed the revised portion showing the right-of-way through Ian Merkel’s property and both agreed that the way the lines were drawn, it was difficult to decipher between the property lines and the right-of-way. Mrs. Christiana spoke with Mr. Rehnborg’s surveyor and she fixed the problem.
Chairman Tapper read draft conditions for the Board to consider for Final Approval as follows:
1. The Town of Rochester takes no position on the ownership of the Deed Gore.
2. When built, the right-of-way shall be constructed according to Town of Rochester Road Specifications.
3. All notes on the December 12, 2008 approved plans as prepared by Margaret M. Hillriegel, Licensed Land Surveyor, are incorporated into this decision.
4. Limits of right-of-way and boundary lines shall be as proposed, as shown on approved plans dated December 12, 2008 as prepared by Margaret M. Hillriegel, Licensed Land Surveyor.
5. Applicant shall file maps with the Ulster County Clerk within 60 days of Chairman’s signature.
6. Applicant shall return three (3) filed copies to the Town of Rochester Planning Board Secretary within 30 days of filing.
Mr. Ullman questioned if condition #1 was inconsistent with the notes on the map where they claim they have eliminated the deed gore and in condition #3 where we incorporate all notes into this decision?
Mrs. Christiana noted that they can say that they eliminated the deed gore, but by condition #1, the Town takes no position on that.
Chairman Tapper motioned for Final Approval with the following conditions:
1. The Town of Rochester takes no position on the ownership of the Deed Gore.
2. When built, the right-of-way shall be constructed according to Town of Rochester Road Specifications.
3. All notes on the December 12, 2008 approved plans as prepared by Margaret M. Hillriegel, Licensed Land Surveyor, are incorporated into this decision.
4. Limits of right-of-way and boundary lines shall be as proposed, as shown on approved plans dated December 12, 2008 as prepared by Margaret M. Hillriegel, Licensed Land Surveyor.
5. Applicant shall file maps with the Ulster County Clerk within 60 days of Chairman’s signature.
6. Applicant shall return three (3) filed copies to the Town of Rochester Planning Board Secretary within 30 days of filing.
Seconded by Mr. Ullman. No discussion.
Vote:
Tapper, Chairman- Yes Ricks, VC- Yes
Kawalchuk- Absent Smith- Absent
Ullman- Yes Rominger- Yes
Dunn(alt.)- Absent Baden- Absent
ACTION ON MINUTES
Mr. Ullman motioned to accept the November 18, 2008 minutes with the correction of “Acceptation” replacing the word “Exception” on Page 3. Mr. Rominger seconded the motion.
Vote:
Tapper, Chairman- Yes Ricks, VC- Yes
Kawalchuk- Absent Smith- Absent
Ullman- Yes Rominger- Yes
Dunn(alt.)- Absent Baden- Absent
OTHER MATTERS
CONTINUED DISCUSSION ON PLANNER THRESHOLDS
The Board reviewed the letter composed to the Town Board regarding the recommendation to revise the Planner Thresholds and its consensus was it was good and should be sent to the Town Board.
MOMBACCUS EXCAVATING, AMANDA DRIVE, BLUE STONE MINE, LEAD AGENCY DISCUSSION
Chairman Tapper noted that the Mrs. Paddock Stange, Secretary had sent a follow up email questioning Mr. Petronella of the DEC if they had any information on what their next step would be as members were wondering and asking her.
Mr. Petronella responded via email saying that the DEC would be sending a letter to the Commissioner disputing the Planning Board’s request for Lead Agency Designation.
Chairman Tapper continued that Mr. Ullman then followed up with an email to the PB Office stating that the PB needed to get their procedure in order on how to handle that DEC correspondence to the Commissioner because there were deadlines and procedures that needed to be followed.
Chairman Tapper wanted to clarify with the Board that the email from Mr. Petronella of the DEC was not the DEC’s official response.
Mrs. Christiana noted that the response to the Planning Board’s request for Lead Agency Designation will be a letter to the DEC Commissioner stating their reasons why the Town of Rochester Planning Board should not be Lead Agency.
Mr. Rominger questioned if there were ever any circumstances where the Commissioner would grant Co- Lead Agency status between the Town and the State?
Mrs. Christina answered that the Commissioner cannot do that. She gave the Board section 617.6(B) Action Where Lead Agency Cannot be Established. She has been through this process recently and it is within her experience that the Commissioner always finds in favor of the DEC as Lead Agent. She is aware that in one case the Commissioner put in the decision that the DEC should really work with the Planning Board, but they don’t assign co- Lead Agencies.
Mr. Rominger questioned how the PB could go about getting more leverage and input if the Commissioner never sides with the PB’s and if co-Lead Agencies are established?
Mrs. Christiana noted that if the Board didn’t want to protest the DEC’s Lead Agency Dispute, they would still be an involved agency and should be involved with the proceedings and go to the DEC hearings. Ultimately the DEC is Lead Agency. She has noticed that only where the Mining is very minor to the rest of the project has it been overturned. For example, they would mine a portion of the project and do some excavating to ultimately put in a mall and the mall would have much more local impact. Cases like that they sometimes have given it to the local agency. There was even one case where they were mining and then when the mining was done they were putting in a lake and have a recreational facility with jet skiing and all different things—long term this was of local impact. Within the stipulated deadlines the DEC would put their argument into the Commissioner and the Board would have to put their argument in and it would have to be a little creative.
Chairman Tapper noted that the anticipated impacts were more local rather than regional or state wide.
Mr. Ullman recalled the mining being a side effect of building a home.
Mr. Rominger noted that they were coming in under the cut off in acreage and Mr. Kortright basically said he wanted to flatten some land so his kids could build houses 20 years from now. That was when Mr. Rominger said to Mr. Kortright’s Attorney, ‘why not file some sort of permit to level land and it wouldn’t be a mine.’ That way they would just come in for a Special Use Permit and then they got all freaked out over that and obviously it’s a mine.
Mr. Ullman noted that the stated purpose is not for a mine in terms of Lead Agency status according to the applicant.
Chairman Tapper recalled that Mr. Kortright would be hauling out stuff to another mine to crush it.
Mr. Ullman noted that in large part what the Board was concerned with was the trucking impact which is of local impact and the impact on the Pine Grove. He felt that this could be a persuasive argument.
Chairman Tapper wants the DEC to take the Board seriously on its problems and concerns and not just slough the Board off. They could think that every mine has the same problem—a dirt problem and traffic problem, but every one is unique depending on where it’s located.
Mr. Rominger stated that the Board doesn’t even have enough information as to what the mine is going to do to know what the impact will fully be on the Town.
Mrs. Christiana noted that this is part of the problem. The Board doesn’t have an application and it was very loose—they were thinking of this and that and maybe.
The Secretary noted that on their EAF they put down that they had actually submitted a Special Use Permit application to the Planning Board when they have not. Mr. Baden had caught that when he was reviewing their report to the DEC.
Mr. Rominger questioned how they could even be deciding who was Lead Agency when the Board didn’t even have an application?
Mrs. Christiana noted that because there was a potential in the future for the Board to have an application for example if they were to subdivide this. During SEQRA you have to look at everything – you can’t segment it and just look at mining and then in a few years they can’t go to the PB and then look at the environment impacts of a subdivision. It’s required that everything gets looked at together. So, when they put down that they already applied—it triggered that the PB would have to be an involved agent because this would be subdivided in the future. Right now there are a lot of unknowns.
Mr. Rominger stated that the Board didn’t even know if this was going to be a mine then because they haven’t submitted an application.
Mrs. Christiana noted that they have an application to the DEC and it would go to us because of the size. If it were under the 1,000 yards it would be the Town’s mining application, but its not.
Mr. Rominger believed that the Board should come up with their concerns and argument and list them and have it ready to go and if not share it with the DEC up front and say that these are our issues.
Mrs. Christiana believed that this was shared with the DEC already in the letter that triggered the DEC’s dispute for Lead Agency. All Town’s that dispute this really all have the same complaints—the noise the dust the proximity to residential subdivisions.
Mr. Rominger noted that what we hear from citizens and maybe it’s just from those in close proximity, but whatever the DEC approves is too annoying. So, do we have any data where there are 10 mining applications and the DEC within a very small margin of error has the same outcome of truck loads and dust—do they kind of do a one size fits all or do they truly tailor the situation when they come out with their final recommendation?
Mrs. Christiana did not know.
Mr. Rominger believed the perception out there that the DEC has a one size fits all kind of thing.
Mr. Ricks noted that they go by their book.
Mr. Rominger stated that this was what frustrated people because every area that a mine goes into has a different density of residents and so forth.
Chairman Tapper noted that the Town also had a few regulations for mines like 6 days a week.
Mrs. Christiana agreed and noted that’s where the Town gets their say.
Mr. Ricks noted that there are a few unique things here like the children’s camp close by and also the fact that the Pine Grove Ranch has the road bisect the resort and there are people walking around and riding horses.
Mr. Rominger agreed with Mr. Ricks.
Chairman Tapper wasn’t sure if there was a way the trucks could go out another road.
Mr. Ricks noted that this would add about 8-10 miles to the trip, so that wouldn’t happen.
Chairman Tapper wanted to get an idea from the Board as to if they wanted to get together a package to fight?
Mr. Ricks felt that an appropriate letter could be effective, but to spend tons of money on this would be a waste.
Mrs. Christiana agreed- she needed the Board to tell her how far they wanted her to go with this.
Mr. Rominger felt that the question was if the DEC is running it, if a PB member could work with them, the Board probably could influence them more if there was someone assigned to sit with them. That’s the only hope that the PB could get along with them and they make their special concerns known and heard. They could still vote against the PB, but the closer they are to the situation…
Chairman Tapper noted that this was what the Board was looking for—to have more input than to just say—okay- here it’s yours. The Board wants to make sure that they have their input and that the DEC looks at their input and takes it seriously.
Mr. Rominger felt that they could also write a letter to the DEC if they didn’t want to fight it and that it wouldn’t’ go in their favor anyway and say, ‘listen, we don’t want to get in a big fight about this, but we really do care about this and have a PB member to sit in on meetings and meet periodically to see what’s going on. If they say fine, then good.
Mrs. Christiana noted that under this particular Regional Director they have been very good at being involved with the Towns.
Mr. Rominger noted that they presented recently at a training and they did a whole thing on SEQRA and it did seem that you could work with them. They seemed very nice. He wasn’t sure who made the decision on the DEC if it was a Board or the Commissioner.
Mr. Ricks noted that he looked on the application and what could they really mitigate to change? Maybe a couple of loads a day, but other than that, it would be approved or not approved. The dust is up at the mine site, which isn’t near anything—the whole thing comes down to the trucks and the number of loads a day.
Mr. Rominger’s only question is that it really comes down to trucks- that’s why he’s getting back to the question of does the DEC on a 9 acre site always allow the same number of truck loads or will they vary it based on Town input. If that’s the only thing the PB cares about and the only thing they want to change, then they should still try and be involved with them to change that one thing.
Mr. Ricks and Mr. Rominger were in agreement.
Chairman Tapper noted that the Pine Grove is busier especially in the summer time on the weekend as it is a resort hotel. He wasn’t sure if they could be able to eliminate Saturdays for that reason or if the applicant would claim prejudiced because every other mine is allowed to operate on Saturdays. He guessed if the applicant agreed to it, it could be done. He wasn’t sure.
Mr. Ricks noted that there was a Jewish camp there too and there were a lot of kids and people always walking on the road. Two way traffic on that small road—cars or the people would have to move and usually the people don’t move.
Mrs. Christiana noted that there could be Public Hearings so that the Board could make recommendations to the DEC in regards to setbacks from property lines or right of ways, hours of operation and whether mining is prohibited by Zoning at the location. They would need a Special Use Permit, but most of the conditions the Town couldn’t regulate.
Mr. Rominger noted that they had the right to have Public Hearings and if they had strong opinions from the public to not operate on a Saturday, the Board could give that input to the DEC. They could probably give that input without Public Hearings.
Mr. Ricks noted that the other mines that the applicant has works limited hours on Saturdays anyway. He didn’t think they did any processing—maybe they were open for people to get truck loads of their own of material.
Chairman Tapper noted that this was one of their arguments for being open Saturdays was for weekenders to be able to get material as well.
Mr. Ricks noted that if they were just transferring from one mine to another, that wasn’t really a necessity on a Saturday.
Chairman Tapper stated that they would see what the DEC had to say and go from there.
Mr. Ullman felt that the Board should have a procedure on how to handle the response to the DEC as there is a 10 day time frame from the receipt of their letter to the Commissioner. It could come tomorrow.
Mrs. Christiana agreed- if it came in between meetings it would be good to have a plan.
Mr. Rominger felt that based on the likelihood that the PB would lose the dispute and…
Mr. Ullman noted that a letter was put together before—and it will probably say similar things—
Mrs. Christiana agreed that the letter didn’t have to be from her—it could be from the Chairman or select members and circulated through the Board.
Mr. Ullman felt that between himself and the Chairman and Mr. Baden they could put something together especially since they aren’t advancing any new arguments.
Mrs. Christiana agreed.
Mr. Ullman felt that they could do an initial draft and get Mrs. Christiana’s input and keep the cost down.
Mr. Rominger felt that if the PB sends their letter and they respond negatively— would the Board be better off saying that they would lose anyway and try the nice guy approach…
Mr. Ullman felt that they were trying the nice guy approach now, but he felt the Board should try and be prepared now to have the letter.
Mr. Rominger agreed. But, maybe the Chairman could contact DEC and give them some options, like the PB could either go to the Commissioner, or if the PB felt that they were included to a level where the PB’s input is going to be of value, could they have people from the PB working with the DEC, then they’d be willing not to pursue Lead Agency, but the PB would need some confirmation that the DEC wasn’t just going to take the PB under advisement. They’d want some assurance that the DEC would work closely with them on a couple of issues and the PB wouldn’t pursue it.
Mr. Ullman noted that they could start talking to the DEC now, but when that timetable is started by the DEC with their letter to the Commissioner, the Board has to be ready to respond. Meanwhile we can tell them that they’ll withdraw their opposition if the PB gets a, b, & c. He felt the Board should first authorize Chairman Tapper to make that initial contact with the DEC and then approve a procedure where some member of the Board is designated to start drafting a letter and get Chairman Tapper’s and Mrs. Christiana’s input all in the 10 day time period. They could start the letter now—just so they were prepared.
Mr. Rominger knew that Mr. Baden was reachable and able to work on some things, so he should be contacted.
And someone should contact them now and start the dialogue and communication.
Chairman Tapper felt that should come from the Office rather than individual members.
Mr. Rominger agreed.
Mr. Ullman noted that the Chairman could say that the Board wanted to be amicable about it and tentatively planning protesting the Lead Agency being taken by the DEC.
Chairman Tapper agreed and wanted to convey that the Board wanted their input heard without having to go to the level of a dispute.
Mr. Rominger noted that they were trying to get somewhere in between of an involved agency and Lead Agency.
Mrs. Christiana noted that the Board should motion that if the DEC takes the dispute to the commissioner that there is a procedure.
Mr. Ricks made a motion that if the DEC responds to the Commissioner and the Board has to respond within 10 days that Mr. Ullman, Mr. Baden, and Chairman Tapper are authorized to do so. Mr. Rominger seconded by motion.
Discussion:
Chairman Tapper questioned if the Board wasn’t going to dispute then?
Mr. Rominger noted that talking to the DEC before these letters happen may determine that—but the Board would continue with the dispute if they didn’t get any definite assurance from the DEC that they would be really involved.
Chairman Tapper understood, but he didn’t want to threaten the DEC by telling them, work with us, or we’re going to dispute it.
Mr. Ullman stated that it wouldn’t be a threat, the Chairman would just be making a statement and it could be worded appropriately not to be one.
Chairman Tapper questioned if this was a letter?
Mr. Rominger noted that it wouldn’t be a letter or an email—it would be a phone call—reaching out to them and making a personal connection.
Mr. Ullman clarified that if the DEC did send out the letter that the PB would send a follow up letter under the Chairman’s signature that would be prepared by Mr. Ullman, Mr. Baden, and Chairman Tapper. Mr. Ullman would start talking to Mr. Baden now, but they wouldn’t send anything out until Chairman Tapper approved it and signed it.
Vote:
Tapper, Chairman- Yes Ricks, VC- Yes
Kawalchuk- Absent Smith- Absent
Ullman- Yes Rominger- Yes
Dunn(alt.)- Absent Baden- Absent
ADJOURNMENT
Mr. Ricks motioned to adjourn the meeting. Seconded by Mr. Ullman. No discussion. All members present in favor.
As there was no further business, at 7:50PM, Chairman Tapper adjourned the meeting.
Respectfully submitted,
Rebecca Paddock Stange, Secretary