Planning Board Minutes Sept. 2010

MINUTES OF September 21, 2010 Regular MEETING of the Town of Rochester PLANNING BOARD, held at the Town Hall, Accord, NY.
 
Chairman Tapper called meeting to order at 7:00 PM.

 

PRESENT:                                                        ABSENT:
Melvyn I. Tapper, Chairman
Shane Ricks, Vice Chairman      
Robert Rominger                                         
        Leon Smith                                                              
        Michael Baden                                                           
Anthony Ullman
Fred O’Donnell (new member, first meeting)  

 

Also present was Tim Moot, Town Planner from Clark Patterson Lee and Town Attorney, Mary Lou Christiana.                                                                                        
                
Pledge to the Flag.

 

PUBLIC HEARING and SEQRA DETERMINATION
WAYNE KELDER–   Flying Field, Special Use Permit, Lower Whitfield Road, Part of Tax Map #68.4-4- 16 & 17, AR-3 District

 

Mr. Kelder was present along with representative, Barry Medenbach, PE.

 

Mr. Baden knew that Mr. Kelder just moved his house. Was it on that parcel?

 

Mr. Kelder responded that it was across the pond. It was the next parcel up.

 

Mr. Baden just wanted to make sure it wasn’t on the parcel in question.

 

Mr. Kelder noted that they moved his house about a ½ a mile on another of his parcels.

 

Chairman Tapper noted that he missed a couple of meetings, but he did a lot of reading to catch himself up. He wasn’t sure where he read it, but they were talking about the orange balls on the Central Hudson lines. Who does that?

 

Mr. Kelder noted that they do it. He needed to contact them and coordinate it.

 

Mr. Ullman questioned what type of plane is proposed? And what is Mr. Kelder’s anticipated use? How often would it be used?

 

Mr. Kelder stated that he would have a single wing 4 passenger private plane. He further noted that for months there wouldn’t be any activity because of the weather, but maybe in better weather a couple times a day.

 

Chairman Tapper questioned where Mr. Kelder would gas up his plane?

 

Mr. Kelder noted at other airports.

 

PUBLIC HEARING and SEQRA DETERMINATION
WAYNE KELDER (cont’d)–  Flying Field, Special Use Permit, Lower Whitfield Road, Part of Tax Map #68.4-4- 16 & 17, AR-3 District

 

Mr. Smith noted that Ellenville had a station.

 

Chairman Tapper noted that in the minutes from the August meeting Mr. Ullman and Mr. Rominger had questions.

 

Mr. Rominger had a question as to assuming that the Board moved forward with an approval with conditions, he just wanted to make sure that there was no way in which the Town could lose jurisdiction as far as changes to the airport— can the  FAA or DOT supercede the Town’s jurisdiction?

 

Chairman Tapper questioned if Mr. Rominger was referring to something like if the applicant decided to put a hanger up- would it have to come back to the Board?

 

Mr. Rominger noted that it might not be Mr. Kelder- Say someone else owned it 10 years from now and they want to fly a different type of aircraft or they want to put fuel in…and the Town Board says no you can’t.

 

Town Attorney, Mary Lou Christiana noted that it’s going to depend on what the DOT or FAA regulations are at that time. They are superior to the Town.

 

Mr. Rominger questioned if they were now or not?

 

Mr. Kelder noted that they were. In some of the literature that he submitted the DOT especially noted that they approved the plan, but it specifically says that in no way does it supercede any of the rules that the Town has.

 

Mrs. Christiana noted that she could tell you what the rules were today, but no one can ever predict what they are going to be in the future.

 

Mr. Rominger wanted to clarify that right now they couldn’t supercede the Town?

 

Mrs. Christiana didn’t know the answer to that as she was not in attendance at this meeting specifically for this application, but they aren’t as they are saying in their correspondence that they don’t supercede the Town’s regulations.

 

Chairman Tapper noted that for a larger or more powerful plane, a longer or bigger airstrip might be needed, correct?

 

Mr. Kelder agreed noting that they would need to come back to the Town to change it. He is applying for this now- any changes he would make he’d need to re-apply for. The only reason they are here is for a Special Use Permit. In some areas its permitted and some areas its not permitted. In his area it is permitted by a Special Use Permit.

 

Chairman Tapper questioned the need for the applicant to come back to the Board any time he wanted to buy a new plane.

 

PUBLIC HEARING and SEQRA DETERMINATION
WAYNE KELDER (cont’d)–  Flying Field, Special Use Permit, Lower Whitfield Road, Part of Tax Map #68.4-4- 16 & 17, AR-3 District

 

Mr. Medenbach  noted that under the Town’s Zoning Law that if there was any change to the site, they’d have to come back.

 

Mr. Baden noted that the Board could make it a condition to cover that.

 

Chairman Tapper questioned why the applicant would need to come back to the Board if he wanted to buy a new plane?

 

Mr. Ullman noted that it would depend on what the conditions are, but he certainly thought it would be something the Board should consider that if there was any change in use that would lead to any additional or increase in impact. It should be a condition in the permit to come back for those reasons.

 

Mr. Ricks had a question—Would any one be flying the little ultra lights out of there? Mr. Ricks has heard people say that they have a snow mobile motor on them with expansion pipes on them and they are very noisy.

 

Mr. Kelder answered no.

 

Mr. Medenbach noted that his neighbor flied one about every Sunday. It was noisy, but it was usually in the middle of the day and it sounded like a neighbor starting up their lawnmower.

 

Mr. Ricks noted that at one time they were using the Accord airport and there was a bunch of them and what they would do is continually circle over where the golf course is and some of the golfers ended up complaining after a while because it wasn’t like there was one of them—it was non stop all day long.

 

At this time the Board went over Part 2 of SEQRA. All items were checked as ‘no’ and there was no discussion  until question #17.

 

NOISE AND ODOR IMPACT
17. Will there be objectionable odors, noise, or vibration as a result of the Proposed Action?

 

Chairman Tapper stated ‘no’ to this question.

 

Mr. Ullman objected to this. He noted that clearly there was going to be a potential for significant noise from the airplane.

 

Mr. Ricks advised the Board to look at the examples.

 

Chairman Tapper questioned if Mr. Ullman would say ‘small to moderate’? ‘Potentially large’?

 

Mr. Ullman noted that it was hard to say because it would depend on the frequency of use. If given what the applicant has represented, he would say it would be small to moderate, but then the conditions need to be drafted appropriately to make sure that the use remains small to moderate. Obviously expanded use would entail much more significant noise impact.

 

PUBLIC HEARING and SEQRA DETERMINATION
WAYNE KELDER (cont’d)–  Flying Field, Special Use Permit, Lower Whitfield Road, Part of Tax Map #68.4-4- 16 & 17, AR-3 District

 

Mr. Smith questioned if that was the way the whole Board felt?

 

Mr. Baden agreed with ‘small to moderate’.

 

Chairman Tapper questioned how the Board was supposed to do that? Were they supposed to limit the amount of times he can take off and land.

 

Mr. Ullman stated, yes. There were lots of ways and this isn’t something that hasn’t been addressed before. There are lots of types of conditions that can be put on this. One is for example, any change of use of the aircraft has to come back.

 

Mr. Ricks, Vice Chairman questioned if the Town had a noise ordinance right now?

 

Mr. Baden noted that it did not.

 

Mr. Ricks stated that the example said, ‘Proposed Action will produce operating noise exceeding the local ambient noise levels for noise outside of structures.’

 

Mrs. Christiana noted that the word ‘levels’ means that it doesn’t have to be by ordinance- there’s a lot more noise in the city than the country—something like  that.

 

Mr. Ullman noted that the restrictions on overall use and frequency, the permit can be made annually renewable, it can be limited to be aircraft owned personally by the applicant and it can be made non-transferable. There are lots of ways that have been done before to make sure that the impact remains small to moderate.

 

Mr. Kelder noted that the particular aircraft would probably not put out anymore noise than a lawnmower next door. It also will not be any more noisy than we are imposed on being in the flight path of an airport now. A C5A- one just went over at 2pm today. His plane doesn’t have anywhere near that noise and its probably not going to be as low as that plane was today. Noise is not a factor because they aren’t close enough to any particular area and people that are flying around in pleasure today with a small plane make as much noise as this plane will make on take-off. He thought that the noise is not an issue.

 

Mr. Baden noted that by checking ‘small to moderate’ they weren’t triggering anything.

 

Mr. Ullman stated that if what Mr. Kelder has stated is accurate, then some of the conditions that he’s outlined would be in line with the use that he proposes.

 

Chairman Tapper stated that they could make it a ‘small to moderate’ impact and if they deem them appropriate, they could address them in the conditions in the approval.

 

Mr. Baden noted that it was pretty clear in the instructions that ‘maybe’ answers should be considered as ‘yes’.

 

Mr. Ullman noted that they are talking ‘potentially’.
PUBLIC HEARING and SEQRA DETERMINATION
WAYNE KELDER (cont’d)–  Flying Field, Special Use Permit, Lower Whitfield Road, Part of Tax Map #68.4-4- 16 & 17, AR-3 District

 

The Board checked #17 as yes, with ‘Proposed Action will produce operating noise exceeding the local ambient noise levels for noise outside of structures.’ Being checked as a ‘small to moderate’ impact.

 

Chairman Tapper continued reading through Part 2 of the EAF.

 

#19 of Part 2 of the EAF, IMPACT ON GROWTH AND CHARACTER OF COMMUNITY OR NEIGHBORHOOD  19. Will Proposed Action affect the character of the existing community?

 

Mr. Ullman stated that if the use is small to moderate that it wouldn’t, but if the use were big, it clearly could. He would check it ‘yes’ as a potential ‘small to moderate’.  

 

Mr. Ricks, Vice Chairman didn’t think that this had anything to do with changing the character of the neighborhood.

 

Mr. Ullman stated that as he looked at it, if it were an airport with a heavy use, it would change the character of the neighborhood. He didn’t think from what the applicant has said that this would be an issue here, but he would still consider it a potential impact.

 

Chairman Tapper noted that the application now is for one plane for a private landing strip or use in an emergency, so the Board wasn’t really talking about an expansion of it at this time.

 

Mr. Ullman note that from a strictly ‘potential’ view point one plane that is constantly landing and taking off could have a very significant impact. Based on what the applicant has said that doesn’t appear to be an issue here, but in terms of going through the form, Mr. Ullman’s perception is that it would be checked as ‘yes’ for a ‘small to moderate’.

 

Chairman Tapper polled the vote on how they felt about this. Should it be checked as ‘small to moderate’?
Mr. Ricks-      No
Mr. Baden-      No
Mr. Rominger-Yes
Mr. Ullman-     Yes
Mr. Smith-      No
Chairman Tapper- No
Mr. O’Donnell-Abstain
4 Members in favor of not checking #19 off as a ‘small to moderate’ impact and 2 members in favor of checking it off as a ‘small to moderate impact’. The Board did not check #19 off as ‘yes’.

 

Chairman Tapper commented that #20 really seems like a question that should be asked after the Public Hearing is held, “Is there, or is there likely to be, public controversy related to potential adverse environment impacts?”.If this item gets checked off as ‘no’ would any Board members have a different opinion?

 

Mr. Ullman wasn’t sure. Did anyone on the Board get any feedback from the public? Mr. Ullman didn’t know what the public was going to say.

 

PUBLIC HEARING and SEQRA DETERMINATION
WAYNE KELDER (cont’d)–  Flying Field, Special Use Permit, Lower Whitfield Road, Part of Tax Map #68.4-4- 16 & 17, AR-3 District
Mr. Baden noted that based on the fact that there wasn’t 100 people in the  room that he would say no. The thing about SEQRA is that if the Board discovers that after they have done their SEQRA if they find that it was done incorrectly it can always be re-opened.

 

Mr. Baden made a motion for a Negative Declaration under SEQRA.

 

Mr. Ullman questioned if this should be a Negative Declaration? He thought it would be appropriate to make it a Conditioned Negative Declaration.

 

Chairman Tapper questioned what it would be conditioned on?

 

Mr. Ullman stated that it would have appropriate conditions to make sure the noise impacts stay small to moderate.
Mr. Medenbach stated that they would object to that.

 

Mr. Baden noted that the conditions would be on the approval.

 

Mr. Ullman stated that technically that’s called a Conditioned Negative Declaration.

 

Mr. Ricks noted that that was wrong. It’s either given a Positive Declaration or a Negative Declaration.

 

Mr. Baden noted that a Conditioned Negative Declaration comes out after the applicant has gone through an Environmental Impact Statement and that is a result of the EIS.

 

Mr. Ullman didn’t see how they could say that it’s a Negative Declaration unless its give conditions quite clear.

 

Mrs. Christiana noted that with ‘small to moderate’ impacts you could condition it through the approval. If they were ‘potentially large’ impacts then you might have to ask for further studies or an EIS. But where it’s ‘small to moderate’ it can be a Negative Declaration.

 

Mr. Baden commented that if there were any ‘potentially large’ impacts identified then the Board would be going through Part 3 and then they would be deciding if they needed an EIS or not.

 

Mr. Ricks seconded the motion for a Negative Declaration under SEQRA.
Ricks-          Yes                                     Baden-          Yes
Ullman- Yes                                     Rominger-               Yes
Smith-          Yes                                     Tapper-         Yes
O’Donnell-      Yes
Motion carried.

 

AT 7:30PM Chairman Tapper opened the Hearing up to the Public for comment.

 

Chairman Tapper noted that this is located just off of Mettacahonts on Lower Whitfield Road.
PUBLIC HEARING and SEQRA DETERMINATION
WAYNE KELDER (cont’d)–  Flying Field, Special Use Permit, Lower Whitfield Road, Part of Tax Map #68.4-4- 16 & 17, AR-3 District

 

Walter Levy wanted to know if it was a stealth aircraft that Mr. Kelder was using ? The reason he is asking that is because they are talking about quantitative things. He wasn’t hearing anything about any measurements other than low and moderate which are relative terms.

 

Chairman Tapper wasn’t sure if Mr. Levy had looked at the application at all. Mr. Kelder wasn’t planning on storing any gasoline there- its just going to be the one airplane.

 

Mr. Levy wasn’t talking about that. What was ‘low moderate’ in terms of noise?

 

Chairman Tapper stated that it is a relative term, but the Town of Rochester does not have a noise ordinance.

 

Mr. Levy understood that noting that it is inherently a problem because we have a race track.

 

Chairman Tapper stated that the Town has had a race track for 50 years.

 

Mr. Levy noted that it didn’t matter how long you’ve had it, it’s always a current question in regards to ‘relative noise’ at the race track. He wasn’t telling the Board to close it down or anything, but the Board is dealing with noise and the noise can be measured. One of the things that he would like to happen is if Mr. Kelder could arrange to give the Board and public noise measurements so they could say that there wouldn’t be any noise impact. Some of the other things that have been said—Mr. Kelder stated that the plane takes off—but it flies and when it flies it flies a lot lower than a C5A and get very loud. He wanted something that would secure that the impact on noise would be small to moderate.

 

Next to speak was Carrie Shapter from Accord wanted to express her support for having limits put on in terms of frequency and times of day and things like that. She thought it was fair to accommodate people and what they want to do but she also thought that one person could have a huge impact on a lot of people through noise. She would appreciate specific conditions to support this.

 

William Farrel wanted to know if Mr. Kelder’s was going to be as loud as the planes that sprayed every year for the farmers? He lived right next to the farmers and that doesn’t bother him. Helicopters fly over his house everyday. If that doesn’t bother him, a little plane wouldn’t bother him. His mower probably makes more noise

 

Ms. Shapter wanted to take into the account that the Town didn’t want to set precedence and this may be an isolated case and she was all for people flying private planes, but it needed to be looked at closely.

 

Mr. Ricks, Vice Chairman questioned Mr. Kelder. On small planes- are there certain planes that have to have a certain type of muffler on them or are other ones much louder than other ones? He knows that at one time the guy who  flew the plane that was crop dusting his planes seemed like it may have had a supped up motor or something and when he came out of his dives and came up it was louder than any other plane than he’d ever heard. Mr. Kelder’s plane was meant for passengers and not crop dusting. Is there a certain muffler that they put on them?

 

PUBLIC HEARING and SEQRA DETERMINATION
WAYNE KELDER (cont’d)–  Flying Field, Special Use Permit, Lower Whitfield Road, Part of Tax Map #68.4-4- 16 & 17, AR-3 District

 

Mr. Kelder answered that a lot of the noise is created by horsepower. You can choke that noise down, but the one that Mr. Ricks heard crop dusting probably had a 700 horsepower motor. The one Mr. Kelder is talking about is 125 horsepower. Mr. Kelder noted that it’s a different type of plane- it’s a cesna.

 

Chairman Tapper wanted to say in fairness that crop dusters were only once or twice a year where Mr. Kelder would be a little more often than that.

 

Chairman Tapper read a statement from Wendy Hollender who is not a bounding owner to the parcel with the airstrip, but a bounding owner of Mr. Kelder.

 

In Ms. Hollender’s letter she was concerned with having no landing lights, no gas storage on premises, and a limit to the amount of arrivals and departures in a given time period.

 

Chairman Tapper noted that there were no lights, no gasoline storage, and the Board would probably condition something when the Board renders their decision in regards to the amount of arrivals and take offs.

 

Ms. Hollender didn’t want the airfield to be changed from personal use to a larger audience in the future.

 

Chairman Tapper then read the Ulster County Referral Response. He also wanted to state to the public for people that may be here for the first time for this application. Mr. Kelder did have to go to the FAA to get approval, He had to go to the State DOT to get approval and the Town Board to get approval to go to the FAA and the DOT for their approvals. He has gotten the approvals all the way and this is basically his last approval needed. He continued with the Ulster County Planning Board response noting that the UCPB had comments as follows:
Recommendations:
The UCPB’s concerns both relate to the safety of the airplane and the immediate area surrounding the proposed runway.
Safety:
Utility lines that are placed on telephone poles are potential hazard for aircraft take-off and landings, especially if not clearly and brightly identified.

 

Furthermore, the potential presence of structures, particularly residences enclose proximity, is a safety concern.

 

Advisory:
The applicant will need to coordinate with the local utility companies (Central Hudson, Verizon, etc) should any utility lines cross the path of the proposed take off and landing routes and in that situation should be marked so that they are clearly visible from both the ground and the air.

 

Advisory comment:
The Town and the applicant may wish to create easements at both ends of the runway to prohibit the construction of structures, residences in particular, at these locations.

 

PUBLIC HEARING and SEQRA DETERMINATION
WAYNE KELDER (cont’d)–  Flying Field, Special Use Permit, Lower Whitfield Road, Part of Tax Map #68.4-4- 16 & 17, AR-3 District

 

Chairman Tapper stated that at the time being Mr. Kelder owned all of the surrounding property to the airfield and the Board will take some of those concerns into consideration when they write up the decision.

 

Mr. Rominger questioned if Mr. Kelder had stated at the last meeting that he removed trees where he would be landing already because of FAA comments.

 

Mr. Kelder stated, yes, they have been removed.

 

Mr. Rominger questioned if it was according to the FAA’s request?

 

Mr. Kelder stated that the FAA has signed off on it.

 

Mr. Ullman questioned that when Mr. Kelder had stated that there were no lights, was he talking about lights on the landing or lights on the plane?

 

Mr. Kelder stated that he wouldn’t be landing at night unless it was an emergency. There were going to be no lights on the strip. There were lights on the plane, but you couldn’t tell depth with them.

 

Town Planner, Mr. Moot noted that he thought they called it VFR – visual flight reconnaissance. That’s all the FAA has to approve.

 

Mr. Kelder noted that all of these things are in control already.

 

Mr. Ricks questioned what the main take off direction would be?

 

Mr. Kelder noted that mainly it would be in an easterly direction and mainly that would not be in the direction of power lines. He would land coming from the easterly- The chances of landing the other way although the airfield is laid out that way would make it more difficult. They presently have an airfield in the Town that is a one way landing on airport road.

 

Mr. Ullman questioned that Mr. Kelder had no interest in changing the surface of the runway that it would always remain a grass runway?

 

Mr. Kelder agreed- that was what they were applying for- an airstrip with a grass runway.

 

Mr. Moot noted that when the Board gives this approval then the FAA assigns coordinates for the runway. Would that condition go along that if there was a case of emergency would that person know about the condition of the power lines? Would that get carried through?

 

Mr. Kelder noted that the way it was written now was that it is designated that it could be either way, but he would be landing from the East.

 

PUBLIC HEARING and SEQRA DETERMINATION
WAYNE KELDER (cont’d)–  Flying Field, Special Use Permit, Lower Whitfield Road, Part of Tax Map #68.4-4- 16 & 17, AR-3 District

 

Mr. Moots point was that Mr. Kelder was familiar with that little catch on the power lines, but if someone was in an emergency…

 

Mr. Kelder noted that the lines would be marked.   

 

Mr. Baden noted that its been recommended by the County and the e Planner that the power lines be marked- the Board could make that a condition.

 

Mr. Rominger noted that even with power lines being marked there they have to be better if you were landing the other way would it be safe as the FAA says to land over the power lines with Mr. Kelder’s type of aircraft?

 

Mr. Kelder noted that it was.

 

Mr. Baden questioned if Mr. Moot had anything outstanding from his comment letter?

 

Mr. Moot noted that pretty much Mr. Kelder revised the application with the discrepancies on the length of the air strip, they did the comments based on the last letter and the County pretty much mirrored CPL’s comments.

 

Mr. Baden questioned about deed restrictions on neighboring lots. At one point someone brought this up. He was looking at lot 2 at the end of the runway, since he owned lot 2- would he consider putting a deed restriction there that the house couldn’t be built right at the end of the runway?

 

Mr. Kelder stated that he wanted to address this. The County came back with the same thought. In January of 2009 he started this application process. He went to the FAA. This was a new process where the Planner was involved and gave him  some good ideas on how to go about it. He first went to FAA and they have now satisfied their requirements on the Federal level. Then they had to go to the Town Board to get them to send the application the DOT. They did that at the State Organization and met all the criteria that they asked for. They had to do safety and many applications. Then it was sent here to the Planning Board. It is something that they can do through  a Special Use Permit, but it is something that can be done in his particular zone under a Special Use. It went from here to the County. Mr. Kelder attended that meeting and there was no one that had any objections to anything. They came back with 2 recommendations. First they recommended that they mark the power lines for site safety. Then they came back with something else saying that maybe something should be done about structures being built at the end of the runway. This Board came up with the idea of an easement. Mr. Kelder wanted to object to that and possibly challenge it if the Board was going to go ahead and do that. There are rules and regulations set forth so someone could not build at the end of the runway, but to put an easement on it? He could sign a piece of paper and put an easement on his property, but he can’t take an easement off of his property by not signing a piece of paper. What it is doing is making land unusable that probably could be in the future and we are telling the future people what we can do with the land and he has an objection with that. He urged the Board to waiver any easement policy. They have spent a lot of money, they’ve done a lot of hoop jumping and he thinks they’ve satisfied everything where he would take an issue on the easement situation.

 

PUBLIC HEARING and SEQRA DETERMINATION
WAYNE KELDER (cont’d)–  Flying Field, Special Use Permit, Lower Whitfield Road, Part of Tax Map #68.4-4- 16 & 17, AR-3 District

 

Mr. Medenbach stated that the other way to look at it too is that the plane could typically land at 500’ and this is an 1,100’ runway, so technically you can say that the easements are incorporated into the runway already. He has plenty of buffer at either end. He doesn’t need to extend that out either way any further. If he came in with a 500’ runway and we said, oh well we have a 300’ easements, then you would end up with the 1,100’ that we have now. The other thing is that the experts looked at this and said it was adequate. They didn’t ask for more land or more clearance at the ends.

 

Chairman Tapper did think that any property that was in line with the runway, somehow the buyer has to be made aware that there is a runway. Maybe it will lay dormant for 2 or 3 years. Just because he owns it now doesn’t mean he always will own the adjoining property. He wasn’t sure if it could be put on the deed that it borders an airstrip.

 

Mr. Moot agreed noting that he didn’t know if the term easement fits here. What we are looking for is a deed restriction maybe.

 

Mr. Baden thought that maybe if they figured a certain amount of feet and established an envelope that they say that no one could build a house in.

 

Mr. Smith wanted to know who would build a house there anyway?

 

Mr. Baden stated that it didn’t matter the possibility is still there.

 

Mr. Ricks, Vice Chairman stated that there is already a parcel on that lot- it doesn’t have frontage on a Town Road, they would be in front of the Planning Board again if anything was ever done with that lot. It’s on a private road so they’d have to come before the Board for approval. The existing house is already the small stone house, which is shown. It wouldn’t be subdivided unless it was in front of the Board again.

 

Mr. Ullman stated that given that the airstrip is what it is and it can be used, and regardless that only half of it technically needs to be used, given what we have, is it the case that there is a safety issue if a structure is built within a certain distance from one end or the other of the runway as was indicated in the response from the County. If it is correct that there is a safety issue, it would appear to Mr. Ullman that it would need to be addressed. If the Board concludes that there isn’t a safety issue then it doesn’t matter, but if there is he doesn’t  see how the Board can just say, ‘buyer beware’ and if he erects a house there then that’s his problem.

 

Mr. Baden questioned what the distance was from the end of the runway to the parcel they were referring to?

 

Mr. Medenbach noted that it was about 40’ from the property line.

 

Mr. Baden stated that the setback in that zone in an AR-3 is 40’.

 

Chairman Tapper stated that on one parcel that borders the airstrip parcel there is a house. On the other side?

 

Mr. Medenbach stated that there is a low lying wet area—probably a wetland, but it’s not an agencies wetland.
PUBLIC HEARING and SEQRA DETERMINATION
WAYNE KELDER (cont’d)–  Flying Field, Special Use Permit, Lower Whitfield Road, Part of Tax Map #68.4-4- 16 & 17, AR-3 District

 

Mr. Rominger questioned how high the power lines were? If it were already safe to clear the power lines then the house would be lower its more a matter of a buyer being aware that they may be building a house at the end of a runway.

 

Mr. Baden wasn’t thinking more of the landing because it will land in the other direction.

 

Mr. Ullman stated that it could land in either direction.

 

Mr. Baden thought that a plane landing and over running the runway…

 

Mr. Kelder stated that 40’ is the minimum setback and that is why the air strip is where it is.

 

Mr. Rominger noted that if you have a plane overshoot the runway you could have your house far away and still be in danger.

 

Mr. O’Donnell stated that that is only if someone builds a house within direct line with the runway. If he goes to build anything other than a single house on that big piece of property he’s going to have to come back to this Board, so they’re going to have to put it right in the bull’s-eye of the runway.

 

Mr. Baden stated that that was what he was proposing that they figure an area and say it can’t be included in a building envelope.

 

Mr. Ricks didn’t think it was required and was just overkill.

 

Chairman Tapper was just trying to figure out a way on those two parcels to make the buyers aware that there was an airstrip on that parcel.

 

Mr. Kelder noted that it was an advisory comment from the County and in the end it was the Board’s decision.

 

Mrs. Christiana agreed.

 

Mr. Baden motioned to close the Public Hearing. Seconded by Mr. Smith. No discussion.
Vote:
Ricks-          Yes                                     Baden-          Yes
Ullman- Yes                                     Rominger-               Yes
Smith-          Yes                                     Tapper-         Yes
O’Donnell-      Yes
Motion carried.
Chairman Tapper noted that the Board would have to discuss this and think about if anything should be addressed. They would continue to work on the decision at the next meeting.
CONTINUED PUBLIC HEARING
REAL ESCAPES PROPERTY, LLC- c/o Simone Harari, Body of Truth Spa, Special Use Permit as per 140-42 of the Town of Rochester Zoning Ordinance for expansion of existing spa facility to include parking area, gym, additions to main house and office, outdoor event pavilion, and sauna building,  Kyserike Road, Tax Map #69.4-2-2, AR-3 District.

 

Mr. Medenbach, engineer was present on behalf of this application along with Simone Harari, Applicant, and James K. Riley, Attorney.

 

Chairman Tapper asked if there were any questions from the Board or comments from the applicant before they re-opened the Public Hearing? Chairman Tapper apologized, noting that he missed several meetings where this was discussed, but he thought he knew what was going on.

 

Mr. Baden had a question, but didn’t know who to address it to. The County Highway Dept.—their comment about this new entrance- when they recommended this, did they recommend closing the other two roads in?

 

Mr. Medenbach answered, yes. What they proposed to do because the fire dept. had a concern too, was that they would like to keep the western access available for emergencies, so they are showing a gate there and that’s fine with the County. So the access to the neighbor will still be open so the neighbor could still access it.

 

Mr. Baden stated that that was his question because he didn’t know if the County was mandating that with the new entrance that the old one needed to be closed. His next question was if we received an official response back from the Fire Dept.? He knew that Mr. Farrell, Accord Fire Chief was present at the meeting, he just wanted to be know.

 

The Secretary noted that they had not received a formal response.

 

Chairman Tapper questioned if they just stated that the existing driveway to the neighbor would remain open and still be accessible to the neighbor.

 

Mr. Medenbach noted, yes. Not all the way through to where it enters the Highway now- that part will be gated off, but he would be able to intersect the new driveway.

 

Mr. Baden clarified that the second part of it would remain active. The neighbor would come in the new driveway and make a sharp right.

 

Chairman Tapper noted that all he saw was the existing driveway.

 

Mr. Baden noted that the existing driveway comes off of County Route 6 and then goes over and intersects where the new driveway is and then continues beyond that to the neighbor’s property.

 

Town Attorney, Mary Lou Christiana noted that the neighbor will be able to use the new entrance and turn right to his driveway.

 

Mr. Medenbach confirmed that they were not forcing the neighbor to build a new driveway.
CONTINUED PUBLIC HEARING
REAL ESCAPES PROPERTY, LLC(cont’d)- c/o Simone Harari, Body of Truth Spa, Special Use Permit as per 140-42 of the Town of Rochester Zoning Ordinance for expansion of existing spa facility to include parking area, gym, additions to main house and office, outdoor event pavilion, and sauna building,  Kyserike Road, Tax Map #69.4-2-2, AR-3 District.

 

Chairman Tapper noted that when they refer to the ‘new driveway’ they are only referring to the new entrance cut onto Kyserike (County Route 6), everything else is the same?

 

Mr. Medenbach answered, yes.

 

Fire Chief William Farrell was present at the meeting and approached the Board. He noted that the only question that he had wanted to ask because he didn’t get a chance to speak with Mr. Medenbach was how wide was the old driveway that they were using?

 

Mr. Medenbach noted that the width varied. They didn’t measure it, but the entrance is probably 20-25’ wide and then when you come down—maybe 18’.

 

Fire Chief Farrell questioned if they would be able to pass two pieces of apparatus at once? 18’ on the turn or 25’ on the turn?

 

Mr. Medenbach stated that it was more like 25’ on the turn.

 

Mr. Ricks stated that the Board wanted to make sure that the fire trucks would have access to all of the buildings.

 

Fire Chief Farrell noted that the only other problem that he had spoke of was that there was only 18’ wide. By the time you get out the hose and put the ladder up, that takes up the 18’.

 

Mr. Medenbach agreed, but noted that they also had the grass area. Mr. Farrell had been to the site—they could put outriggers in the grass and stuff. Its solid ground there.

 

Fire Chief Farrell commented that the problem that they had was that today’s trucks are too heavy. Its not like it was 10 years ago- they are bigger and heavier. They are 10 wheelers instead of 6 wheelers. You are talking a lot more heavier trucks than they had 10 years ago. Mr. Farrell thought about using the section near the parking lot.

 

Mr. Medenbach didn’t understand that because there was a grade issue there. They could make a connection somewhere else.

 

Mr. O’Donnell questioned how long the driveway was.

 

Fire Chief Farrell and Mr. Medenbach stated that it was about 300’.

 

Mr. O’Donnell questioned if this was within the existing code for fire access roads? If it doesn’t meet the codes for fire access, how could the Board approve it? The new code for New York State clearly requires that it needs to be able to support fire apparatus.

 

REAL ESCAPES PROPERTY, LLC(cont’d)- c/o Simone Harari, Body of Truth Spa, Special Use Permit as per 140-42 of the Town of Rochester Zoning Ordinance for expansion of existing spa facility to include parking area, gym, additions to main house and office, outdoor event pavilion, and sauna building,  Kyserike Road, Tax Map #69.4-2-2, AR-3 District.

 

Town Planner, Mr. Moot noted that they recommended that the interior access be widened for that reason.

 

Mr. O’Donnell noted that there are certain thresholds that require pull offs to be supplied, so that one truck could pass the other.

 

Mr. Baden agreed that he has seen situations like this at the Ulster County Planning Board Meetings.

 

Mr. O’Donnell noted that if the Chief isn’t happy with what is being proposed and it’s not up to Code–…

 

Mr. Ricks questioned if fire trucks couldn’t just pull into the parking lot?

 

Mr. O’Donnell noted that it really depended on what building was on fire.

 

Fire Chief Farrell noted that the applicant did have a pond on the property, and he was sure that the applicant didn’t want dig a hydrant pipe from the middle of the pond all the way to the parking lot.

 

Mr. Medenbach noted that it would take quite a bit of lift—they were talking about 33’.

 

Fire Chief Farrell stated that the worst part about this was that they had about a mile and a half just to hall water to get to this.

 

Mr. Medenbach noted that part of their phase 2 proposal is to expand the pond.

 

Fire Chief Farrell questioned how they would gain access to that?

 

Mr. Medenbach stated that he would have to think about it. They could consider the dry hydrant pipe. It was probably about 500’ from the pond to the parking lot. Mr. Medenbach would have to look further at the elevation.

 

Chairman Tapper questioned if Mr. Medenbach was aware of what the Fire Dept. needed.

 

Mr. Medenbach responded that they have been playing ‘tag’ for weeks and this was the first time that he and Fire Chief Farrell had been able to get together.

 

Chairman Tapper stated that if Mr. Medenbach knew what the Fire Chief needed, then he could just work on that.

 

Mr. Medenbach noted that they could accommodate the space needed for the fire trucks. The other issue the Fire Chief is asking for is access to the pond for water. So, if they run a pipe, they can do that, he just needs to make sure that its practical and they would be able to use it and its not too much of a draft.

 

Mr. O’Donnell questioned if the pond was higher than the parking lot?

 

REAL ESCAPES PROPERTY, LLC(cont’d)- c/o Simone Harari, Body of Truth Spa, Special Use Permit as per 140-42 of the Town of Rochester Zoning Ordinance for expansion of existing spa facility to include parking area, gym, additions to main house and office, outdoor event pavilion, and sauna building,  Kyserike Road, Tax Map #69.4-2-2, AR-3 District.

 

Mr. Medenbach noted that the pond was lower. He figured it to be about 16’.

 

Fire Chief Farrell was trying to explain that what they call trucks from Kerhonkson, Olive, and Stone Ridge just so they can tank up water to put these fires out.

 

Mr. Moot questioned how deep the pond was going to be?

 

Mr. Medenbach wasn’t sure yet.

 

Chief Farrell stated that if there was only 16’ from the parking lot to the pond, they could do it.

 

Mr. Medenbach noted that they had a Stormwater Pond that would be in place also—but it wouldn’t always have water in it. The pond would be a much bigger source—it would probably need to be at least 6’ to be functional and he thought it would be more like 10’ or 12’—because they were also thinking of using the pond as a geothermal heat source. They just received a comment letter—the NYS DEC just recognized that they received their application, so they’ve asked for additional information, so they are just starting to look seriously at the pond—as far as how deep it would be.

 

Mr. Baden noted that the applicant was looking at the pond being phase 2 and now he would think that the pond would have to be done in order to get the fire fighting capabilities that they are discussing now.

 

Mr. Medenbach questioned what if they didn’t have a pond? Would the Board not be able to approve the project?

 

Mr. Baden noted that they would probably make them widen the access based on the comments from the Fire Chief.

 

Mr. Medenbach noted that this was a different issue. They could make a different access and resolve that—Fire Chief Farrell is stating that they have water onsite- could they accommodate access to the water?

 

Fire Chief Farrell’s only real problem was two accesses and he was okay with that now.

 

Mr. Medenbach noted that they were willing to go beyond that and accommodate them with water. That shouldn’t hold the project up.

 

Chairman Tapper stated that Fire Chief Farrell should send something to the Board stating that the plan is adequate for his needs. Apparently the new member, Mr. O’Donnell knows a lot of things relating to fire safety as well. So, if they knew what was needed and they could work on getting that together.

 

Mr. O’Donnell noted that he was the Chief of Kerhonkson and saw developments come in and they worked with the developers to create pull offs and make sure that the plans were up to code.
REAL ESCAPES PROPERTY, LLC(cont’d)- c/o Simone Harari, Body of Truth Spa, Special Use Permit as per 140-42 of the Town of Rochester Zoning Ordinance for expansion of existing spa facility to include parking area, gym, additions to main house and office, outdoor event pavilion, and sauna building,  Kyserike Road, Tax Map #69.4-2-2, AR-3 District.

 

Mr. Baden noted that they just had a lot of comments regarding fire safety access and the need for pull offs so trucks could pass each other. He would love if Mr. O’Donnell could look up the number of feet that triggers that requirement.

 

Fire Chief Farrell noted that he had an early morning, so he was going to leave the meeting.

 

Chairman Tapper noted that the Board may ask Fire Chief Farrell to sign off on this some how once they get it all done.

 

Fire Chief Farrell stated that they should contact the Office at the Fire Dept. and the Secretary would get them what they needed.

 

Mr. Ricks noted that from the discussion last meeting and everything that Mr. Ricks has read through in the file, Ms. Harari has given the Board a current description of all of the uses at the spa, they wanted to make sure that it fits correctly into the Zoning Classification that the Town is using now.

 

Town Attorney Mrs. Christiana noted that the applicant has a Special Use Permit that is now non-conforming– it’s an expansion of a Membership Club, which is the pre-existing non-conforming.

 

Mr. Medenbach noted that they were in receipt of a recent memo from the Code Enforcement Officer.

 

The Board was aware of this memo and had it as well.

 

Mr. Ricks noted that from his understanding of reading the material that it was discussed in 2003 and it was discussed about people staying over then and it was discussed the next time and its being discussed again and its basically mostly they are staying over at a special event to have a spa treatment. They just need to know how to put that into the over all project and approval and classification.

 

Mr. Medenbach noted that it’s already been determined- the pre-existing non-conforming use already exists and you really can’t change that or go back and challenge that.

 

Mrs. Christiana wasn’t saying that at all. They were saying that for the expansion- that is this really a Membership Club? Is this members or a commercial operation?

 

Mr. Medenbach noted that it was classified as such- the use that Ms. Harari has on going there and the use that she has been using all along is the same use that she simply wants to increase. She wants to have more rooms…

 

Mr. Ricks stated that it wasn’t classified right to begin with and that was the category that they made it fit into.

 

Mrs. Christiana noted that in the expansion the Board had to make sure that the expansion fit within the classification.

 

REAL ESCAPES PROPERTY, LLC(cont’d)- c/o Simone Harari, Body of Truth Spa, Special Use Permit as per 140-42 of the Town of Rochester Zoning Ordinance for expansion of existing spa facility to include parking area, gym, additions to main house and office, outdoor event pavilion, and sauna building,  Kyserike Road, Tax Map #69.4-2-2, AR-3 District.

 

The applicant’s Attorney, Mr. James Riley, wanted to make a clarification. The existing approval was not a non-conforming use.

 

Mrs. Christiana agreed. That was conforming with the old code.

 

Mr. Riley continued to clarify that the non-conforming part came into the fact that they were expanding the existing use and its not an allowed use in the current zoning district, so it becomes non-conforming.

 

Mrs. Christiana agreed with this.

 

Mr. Medenbach’s argument here was that he agreed – that back when they said that it was a membership use, he thought that that was a little loose in that interpretation—

 

Mr. Ricks stated that we all did.

 

Mr. Medenbach continued, that everybody did, but everybody agreed to it. The Board said, okay- what you’re proposing to do here, we’re going to classify as a membership use, so that group of activities that she said that she was doing back then is the same group of activities that they have now. That is why they asked the Code Enforcement Officer, Jerry Davis, to go and read the whole file—the whole application and see—not just the final decision, but look at the EAF and the description they listed in there and that’s why he generated this letter. Mr. Medenbach didn’t think that they were asking to do anything more in this than what was permitted back then. So, why are we going back and trying to re-classify the use or decide does this really fit this? We’re trying to uncover this problem—we knew there was a problem back then, but we’re stuck with it.

 

Mr. Riley stated that Membership Club, Parentheses, with the uses spelled out that’s a startling situation. Membership Club is—a Club can be almost anything as we all know. You can have various types of organizations with dues, non dues- so it does work and continues to work as we have defined what is going on in there. All language is a fiction to some extent—its not fictional because of what’s going on its just that’s the “category” that it was hung on and its very hard to move it off because there is an entitlement here.

 

Mr. Baden didn’t think that anyone was questioning the way it was categorized when it was approved previously, but now that its being expanded and it’s a non-conforming use, they are required to go back and look at the old definition, not the new definition because by nature of it being a non-conforming use…

 

Mr. Riley stated that yes, he knew that they needed to look at the definition, but they also had to look through the definition a little bit transparently to say well, what was being accomplished under that definition.

 

Mr. Medenbach contributed—in other words, what was allowed under that definition? Whether it was correct or not- these were the activities that were allowed and those are the only activities that are in question.

 

Mr. Baden stated that they were allowed to a degree and now they were being expanded, so he wasn’t necessarily agreeing that expanding them makes it right.
REAL ESCAPES PROPERTY, LLC(cont’d)- c/o Simone Harari, Body of Truth Spa, Special Use Permit as per 140-42 of the Town of Rochester Zoning Ordinance for expansion of existing spa facility to include parking area, gym, additions to main house and office, outdoor event pavilion, and sauna building,  Kyserike Road, Tax Map #69.4-2-2, AR-3 District.

 

Mr. Medenbach stated that except for the law saying that they could expand a non- conforming use.

 

Mr. Ullman noted that from what he understands that there is an issue as to whether the way it is currently being run is really in compliance with definition that was used back then. To him that is an issue that is not presently before this Board and if that’s a code violation then its someone else’s problem, but they are now being asked to take a new proposed use that is supposed to fit into the definition that was previously granted and they can’t do that if the proposed use doesn’t fit into the definition that was previously granted and whether or not its being currently used in the way its consummate with prior definition.

 

Mr. Medenbach stated that this was why they asked the Code Enforcement Officer to send this letter that is addressed to the Planning Board and dated 9/21/10. It says what was permitted.

 

Mr. Ullman stated that the letter doesn’t say anything.

 

Mr. Medenbach disagreed and quoted the letter, … “Membership Club Spa Services to include professional counseling, spa (massage, facials, wet spa), Acupuncture services, health consultations, classes and guest rooms.”

 

Mr. Ullman stated that he read the letter- it doesn’t say anything.

 

Mrs. Christiana stated that it says that in the EAF—not on the application.

 

Mr. Ullman re-iterated that it didn’t say anything it just repeats something on a prior document.

 

Mr. Riley stated that in 2004, (it was a 2003 process) resulting in a 2004 permit does indicate those factors. The other thing that he wanted to step back for a second—the concept of non-conforming use is you have obnoxious non-conforming uses and reasonable non-conforming uses. Obnoxious non-conforming uses is if you have a residential area and there is strip-mining, mining, garbage, junkyards. This is really not an obnoxious non-conforming use as it sits and this zone does allow for a hotel—which often includes spa—because you can’t have a hotel without some sort of recreational facility and it allows conference center, which again you would normally have this type of spa activity at a conference center. So, he does make the argument that what the Board is being asked to do here to some significant extent does jive what would be going on it that zone if it was a change of use. If you had a new hotel you’d have a spa.

 

Chairman Tapper noted that the application is not under that. And as far as obnoxious or innocuous is – discretion is being taken away from Planning Board’s to some extent by Zoning Laws—so it doesn’t leave the Board the discretion to differentiate between an obnoxious Special Use Permit and not one.

 

Mr. Baden noted that the difference in what Mr. Riley is speaking about is that spa and health club is defined in the Zoning Code and is allowed in other districts. Specifically it is not allowed in this district. If it was an undefined use, he would possibly buy what Mr. Riley was saying, but because its defined use in the code and its an allowed use under Special Use Permit in other districts—
REAL ESCAPES PROPERTY, LLC(cont’d)- c/o Simone Harari, Body of Truth Spa, Special Use Permit as per 140-42 of the Town of Rochester Zoning Ordinance for expansion of existing spa facility to include parking area, gym, additions to main house and office, outdoor event pavilion, and sauna building,  Kyserike Road, Tax Map #69.4-2-2, AR-3 District.

 

Mr. Ricks pointed out that Mr. Baden was referring to the new code.

 

Mr. Baden stated that yes, but that’s why in that case that it becomes non-conforming. If a spa was allowed as a Special Use in an AR-3, we wouldn’t be having this discussion. They could just be applying for a new permit and move on. But because it’s a non-conforming use… Whether we like it or don’t like it, we have to follow what the law says.

 

Mr. Ullman had another question for the Town Attorney. In Section 140-42(c.)—how does that effect the determination because his recollection was that there was more parking in this proposes plan and there would be additional employees. He questioned whether this constrains on what they were doing here independently of the issue they’ve just been discussing.
C. No addition, change or expansion of a nonconforming
use shall further violate setback and/
or height regulations of the district in which it is
located. Moreover, no change of use shall be to
one of a more intensive classification (e.g. one
with more employees, more traffic, more parking
or more off-site impacts). A non-conforming retail
enterprise could be converted to a barber shop, for
example, but not to an industrial use.

 

Mr. Baden noted that that particular section was intended to mean large scale changes—if you look at the example, the example is actually better than the language.

 

Mr. Ullman wanted to make sure that they were allowed to interpret the spirit as opposed to the letter.

 

Mrs. Christiana noted that this is talking about classification. That’s not classification.

 

Mr. Baden noted that they were talking about small numbers of employees here.

 

Mr. Medenbach wanted to point out that this was talking about a change of use. They weren’t asking the change the use, they were asking to expand some uses.

 

Mr. Ricks questioned the Town Attorney how the best way was to put this thing to bed and continue?

 

Mrs. Christiana felt that right now they would have the Public Hearing and see if anyone from the public had anything else to say and then she thought that they close the Public Hearing unless they wanted further information and then they take a month to review everything and think about it.

 

Mr. Ricks noted that part of the issue was that at the last Public Hearing that one of the neighbors had brought up some stuff along that line and they wanted to make sure that it was resolved.  

 

REAL ESCAPES PROPERTY, LLC(cont’d)- c/o Simone Harari, Body of Truth Spa, Special Use Permit as per 140-42 of the Town of Rochester Zoning Ordinance for expansion of existing spa facility to include parking area, gym, additions to main house and office, outdoor event pavilion, and sauna building,  Kyserike Road, Tax Map #69.4-2-2, AR-3 District.

 

Mr. Riley stated that they resolved some of it.

 

Mrs. Christiana stated that quite a bit of it has been resolved- the access.

 

Mr. Riley agreed. The access issue has been resolved.

 

Mr. Rominger questioned if the overnight stays and the issue that was raised of more traffic because of the gym- have these things been resolved?

 

Mr. Ullman didn’t see anything that indicated that the overnight guest issue had been resolved and as Mrs. Christiana indicated as well, he didn’t see anywhere where overnight guests would be allowed.

 

Mrs. Christiana noted that it was going to be up to how the Board read the old Planning Board decision. The applicant did point out that in the 2003 EAF it did talk about overnight guests and that’s why it had ended up being discussed in the minutes back then. But the application does not say that and the decision from 2004 does not say that.

 

Mr. Medenbach questioned if Mrs. Christiana was saying that the application didn’t say ‘guest rooms’?

 

Mrs. Christiana stated that the application may have said guest rooms and she recalled that back in the minutes of 2003/2004 being that that was for people who were going to come for the day and get ready for their bridal party.

 

Mr. Medenbach noted that if you read the minutes, they also talked about overnight stays.

 

Mrs. Christiana was aware of this, but it said that that was something we might think about sometime in the future, but we really haven’t looked that far at this point. The Board is going to read these things over and over and over again during the next month and they are going to decide how they interpret that.

 

Mr. Baden suggested that the Public Hearing be opened to see if any new comments come out.

 

Mrs. Christiana stated that for those Members of the Board that were not here for any of the meetings on the expansion application, she urged them to go to the Secretary’s office and listen to those tapes. Not everything goes into the minutes, so that way Board members could be fully aware of the concerns of both the applicant and the public.

 

Mr. Riley questioned if the letter that she had given to the Board, which she felt that she could not share with the applicant—

 

Mrs. Christiana stated that she gave legal advice to the Board and that is privileged legal advice.
REAL ESCAPES PROPERTY, LLC(cont’d)- c/o Simone Harari, Body of Truth Spa, Special Use Permit as per 140-42 of the Town of Rochester Zoning Ordinance for expansion of existing spa facility to include parking area, gym, additions to main house and office, outdoor event pavilion, and sauna building,  Kyserike Road, Tax Map #69.4-2-2, AR-3 District.

 

Mr. Riley didn’t know what case that she relied on to say that it’s privileged. He thought that it was very hard to comment or rebut if they don’t know what position she had taken.

 

Mrs. Christiana noted that she gave the Board legal advice. Mr. Riley is a lawyer- does he generally share his legal advice with the other side?

 

Mr. Riley didn’t think that the privilege extends that far.

 

Mrs. Christiana thought that Mr. Riley was absolutely wrong.

 

Mr. Medenbach noted that the client in this case is a public agency and the public agency must operate in the daylight.

 

Mrs. Christiana stated that the applicants should review the Freedom of Information Laws.

 

Chairman Tapper stated that the Board isn’t going to argue this point.

 

Mr. Riley stated that he did go to the Freedom of Information Laws and he wasn’t sure he agreed with it.

 

Mrs. Christiana has been doing this for longer than she cared to admit and this is how it’s done.

 

Mr. Riley noted that under FOIL this Board can release the correspondence from their Attorney. They could waive the attorney client privilege.

 

Mrs. Christiana agreed and stated that the Board could waive it if they wanted to.

 

Mr. Riley stated that it was difficult for them to adequately represent the applicant if they didn’t know what position Mrs. Christiana was taking in the letter or if there were any attachments. So if the Board is going to consider the letter…

 

Mrs. Christiana stated that the letter tells them, ‘here’s some things you have to look at’ and all of those things have been brought up to the applicant at this meeting.

 

Mr. Medenbach questioned what the harm would be in sharing the letter with the applicant?

 

Mrs. Christiana responded that she does not ever tell her clients to share with the other side. Her recommendation is that if she is asked to offer advice, she’d give it, but it should be kept private.

 

Mr. Riley takes an exception as he finds this unfamiliar.

 

Mrs. Christiana found it very familiar and has done this many times.

 

REAL ESCAPES PROPERTY, LLC(cont’d)- c/o Simone Harari, Body of Truth Spa, Special Use Permit as per 140-42 of the Town of Rochester Zoning Ordinance for expansion of existing spa facility to include parking area, gym, additions to main house and office, outdoor event pavilion, and sauna building,  Kyserike Road, Tax Map #69.4-2-2, AR-3 District.

 

At this time Chairman Tapper opened the application up to the public. He noted that this was located across from the Rondout Valley High School on Kyserike Road.

 

Chairman Tapper noted that the applicant submitted a letter from a neighbor this evening dated September 21, 2010 stating that she was in favor of the application and that this was a welcome addition to the neighborhood and the economy of our Town.

 

Mr. Ullman motioned to close the Public Hearing. Seconded by Chairman Tapper.
No discussion.
Vote:
Ricks-          Yes                                     Baden-  Yes
Ullman- Yes                                     Rominger-       Yes
Smith-          Yes                                     Tapper- Yes
O’Donnell-      Yes

 

Chairman Tapper noted that the Board members will look over all of the information they have.

 

Mr. Baden had a question for Mrs. Christiana. If they decided on changes to this application they could re-open the Public Hearing, right?

 

Mrs. Christiana stated that yes, they could.

 

Mr. Medenbach questioned if the Board would share their Attorney’s letter—if there was any harm in that?

 

Chairman Tapper wasn’t inclined to go against their Attorney’s advice at this point.

 

Mr. Ullman agreed and didn’t see any reason why they would. It’s a matter of principle.

 

Mr. Ricks said that all he could tell Mr. Medenbach was that there was no dramatic news in this letter at all.
Mr. Riley had to respectfully say that he had a very difficult time representing this applicant as his client if he didn’t know what this Board was considering.

 

Chairman Tapper noted that Mrs. Christiana did not recommend that the Board take any position. She just told them to look at all of the information they had and as Mrs. Christiana said herself, everything that was in that letter has been discussed here tonight.

 

Mr. Riley still believed that this left the applicant at a disadvantage.

 

Chairman Tapper questioned if anyone on the Board wanted to make a motion to release the letter?

 

No one made a motion.

 

REAL ESCAPES PROPERTY, LLC(cont’d)- c/o Simone Harari, Body of Truth Spa, Special Use Permit as per 140-42 of the Town of Rochester Zoning Ordinance for expansion of existing spa facility to include parking area, gym, additions to main house and office, outdoor event pavilion, and sauna building,  Kyserike Road, Tax Map #69.4-2-2, AR-3 District.

 

Chairman Tapper stated that the members would look over all of the information and make some sort of a decision at the next regular meeting in October.

 

Mr. Riley thanked the Board and apologized for the difference in opinion, but it was all part of the process.

 

Mr. Ricks questioned if the site plan was how everyone wanted it after the discussions from the last two meetings? Was everything addressed in the Town Planner’s comments?

 

Mr. Moot answered that everything except for the sign off from the Fire Chief. HE also didn’t see a response from the County Highway Dept.

 

Mr. Medenbach stated that the County Highway Dept. issued the permit. That was their response.

 

Mr. Ricks noted that there was a question at one time that there were dry wells near the septic system. Has that been resolved?

 

Mr. Moot stated that Mr. Medenbach seemed confident that the grading wasn’t going to impact the field. They still have a lot of permits that needed to be approved—DEC, UCHD, and he maintains that if any of the subsequent approval significantly change the site plan, that he gets a chance to review it.

 

Mr. Riley stated that the DEC only involved the pond.

 

Mr. Baden stated that the pond is part of phase 2, so that would be a condition of approval.

 

Mr. Medenbach stated that they didn’t have a problem coming back in the future when they wrap everything up with the DEC and say here it is. Obviously if they make them change something they have to come back, but even if they don’t, the applicant doesn’t have a problem coming back.

 

Mr. Moot wanted that to happen so that they could all see the final outcome of it. And with the SWPPP they just wanted to make sure that everything was signed and sealed and that the Town was considered as part of whatever gets sent tot eh State.

 

Mr. Medenbach didn’t have a problem with any of that.

 

Mr. Baden questioned what else in the project was phase 2 other than the pond?

 

Mr. Medenbach noted that the Sauna was within the 100’ buffer of the wetland so they would need DEC approval for that.

 

Mr. Ricks questioned Ms. Harari that once she does her expansion and she has her gym set up and stuff like that- will there be memberships available to join that gym- do you have to pay each time or do you get a membership?
REAL ESCAPES PROPERTY, LLC(cont’d)- c/o Simone Harari, Body of Truth Spa, Special Use Permit as per 140-42 of the Town of Rochester Zoning Ordinance for expansion of existing spa facility to include parking area, gym, additions to main house and office, outdoor event pavilion, and sauna building,  Kyserike Road, Tax Map #69.4-2-2, AR-3 District.

 

Ms. Harari stated that it would be a membership gym.

 

Mr. Ricks wasn’t sure if they ever discussed that before, but he wanted to ask that since the word membership was part of it.

 

Mr. Medenbach wanted to point out that this zone does allow for commercial recreational activities.

 

Mr. Ricks stated that it allows a hotel even.

 

Mr. Medenbach agreed, so if the Board was worried about people sleeping overnight. As a matter of fact that was one of the things that he had suggested to the Code Enforcement Officer when they came back with this application that maybe they should be classified as a hotel with the spa as an accessory and he said no- its more of a spa, I’m going to make it an expansion of the pre-existing non-conforming use.

 

Mr. Ullman had thought that the applicant had indicated that the payment would be on a day rate? Maybe he misrecollected.

 

Chairman Tapper asked if he was correct in assuming that this was a for profit membership and a for profit spa rather than a not for profit?

 

Mr. Riley stated that recognizing that the new definition in the Zoning Code says not for profit- the old mention is ‘for gain’ and apparently the previous building inspector viewed that to some extent that’s not intended to relate to for profit. He viewed them as separate.

 

Ms. Harari stated that Doug Dymond, the previous Code Enforcement Officer before Mr. Davis, had spoken with her a lot about this. She had asked what the “Membership Club” meant that she was being called and he said she couldn’t put up hot dog vendor stands, she couldn’t sell sports apparel, it couldn’t be like a football league or a club like that where people were coming in to do sports arena type things with spectators. A spa is about creating a very calm, peaceful experience for people for health and relaxation. So, the experience that people have as soon as they step on the property is critical to that. It has to be beautiful and it has to be all of the things that go into that or it won’t work. For her at this point and time she feels very much here to serve the community. Yes it is a business, but as many people know it’s been a slow business. It’s been very quiet, but they have helped  a lot of people. They have saved on little kid’s life. And that’s where for her it comes from. So when she hears people say that they don’t have a place that they can go to exercise, that’s okay- well, here it is. This is here to serve the community. The expansion that is before the Board is a spa to what people have asked for to help people in the community to take better care of themselves and learn about things. They spiritually and emotionally and physically grow and this is what this is about. It’s a labor of love. She knows that there are a lot of details that are above her, which is why she has all of these other people here to help her. This is a project from her heart and she really hopes that the Board will consider that.
REAL ESCAPES PROPERTY, LLC(cont’d)- c/o Simone Harari, Body of Truth Spa, Special Use Permit as per 140-42 of the Town of Rochester Zoning Ordinance for expansion of existing spa facility to include parking area, gym, additions to main house and office, outdoor event pavilion, and sauna building,  Kyserike Road, Tax Map #69.4-2-2, AR-3 District.

 

Mr. Riley stated that the applicant has always paid her taxes, its never been doubted that this is a not for profit action.

 

Mr. Rominger questioned if any current Board Members were involved in that original 2004 decision. Mr. Ricks? Chairman Tapper?

 

Mr. Ricks stated that he was on the Board. Chairman Tapper was also on the Board.

 

Mr. Rominger questioned if it was their sense in the discussion that someone would apply to do this and do it for not for profit?

 

Both Mr. Ricks and Chairman Tapper answered No.

 

Mr. Rominger stated that the spirit of the decision was that this was a for profit venture.

 

Mr. Ricks answered yes. But this was the best category that this would fit into according to the old Zoning and according to the Code Enforcement Officer and looking all other ways this was the best way it would fit in. Originally it was just a spa and the applicant’s brother would stay over night and occasionally a friend would stay overnight and then the rooms gradually over time would accommodate a bride or something like that.

 

Mr. Rominger wanted to clarify that the spirit of the discussion at the time that they were approving it, they were aware that it was a for profit and that was their perception and that there may be overnight guests occasionally.

 

Mr. Ricks answered yes.

 

Chairman Tapper remembered asking the question if the owner or employees would be staying overnight and he had asked if they would allow a guest to stay overnight.

 

Mr. Baden stated that Mr. Kawalchuk actually said that.

 

Chairman Tapper stated that this didn’t have to go through Mr. Dymond first before it came to the Board right? That’s only a recent thing?

 

Mr. Baden stated no- the Code Enforcement Office always classifies it.

 

Mr. Ricks agreed and noted that they always have to fill out a Zoning Permit first and that’s how it gets classified.

 

Chairman Tapper stated that the Board would think about it over the next month.

 

Mr. Riley thanked the Board for their time.

 

CONTINUED APPLICATION PRESENTATION
STREAMSIDE ESTATES-      Subdivision Approval for 7 lots, Cherrytown Road, Tax Map #67-2-43.14, AR-3 District
Mr. Medenbach was present on behalf of the application. He noted that he was in receipt of Town Planner, Mr. Moot’s comment letter for this meeting.

 

Chairman Tapper questioned if he was correct in noticing that some of these lots cross over to the other side of the creek?

 

Mr. Medenbach answered, yes- the entire creek is on this parcel, so the applicant owns on the other side.

 

Chairman Tapper noted that lot 3, 4, 5, 6, & 7 cross over to the other side of the creek.

 

Mr. Ricks questioned if the flood line was indicated on the map somewhere?

 

Mr. Medenbach replied, yes—it was the dotted line.

 

Chairman Tapper noted that it was hard to spot- there was a lot going on this plan.

 

Mr. Medenbach agreed that it was a busy map, but this was something that they did a detailed delineation of, so that is pretty accurate. They had done that when they were applying for the mobile home park years ago. The Board reviewed that at that time and its part of the record.

 

Mr. Ricks noted that where the homes were marked—they couldn’t really be moved at all, could they?

 

Mr. Medenbach noted that there was little flexibility on some of them.

 

Chairman Tapper asked if that would be part of the deed restrictions?

 

Mr. Medenbach noted that it would be part of the subdivision- the Board and the Health Dept. would need to sign these maps.

 

Mrs. Christiana, Town Attorney noted that the map would dictate where they could build and it would be incorporated into the decision.

 

Chairman Tapper questioned if they had enough room on these outbuildings, such as sheds on these lots?

 

Mr. Medenbach noted that the lots were plenty big to fit a shed. He also noted that he shows the septic areas on the lots. Each lots has 12,500sf for an area for septic. That is something that is unique to Ulster County. That is in their code and they are in the process of getting rid of that, particularly in the case of a parcel like this because its excessive especially on a parcel like this where you have really good soils and you only need a fraction of that area for a septic system. He believed that by the end of this year that they may have eliminated that. By the time that they file this map they may have a little more buildable area. They will have individual wells. There is a little bit of a well problem that he pointed out. The primary well that is used now for the mobile home park is in the middle of lot 5. It is a very good well for producing water, but it is subject to surface contamination. They are going to abandon that well and installing a good drilled well in the mobile home park as their primary well.
CONTINUED APPLICATION PRESENTATION
STREAMSIDE ESTATES (cont’d)-Subdivision Approval for 7 lots, Cherrytown Road, Tax Map #67-2-43.14, AR-3 District

 

Mr. Ullman questioned what the surface of the proposed private road was?  

 

Mr. Medenbach proposed that as gravel and in Mr. Moots letter he recommended paving the entrance and they didn’t have a problem with that.

 

Mr. Moot noted that he believed it was per code how the slope was now.

 

Mr. Medenbach noted that Mr. Moot had questioned the approach of a vehicle at a 90 degree angle. He provided an illustration with a car on how that would work.

 

Mr. Moot noted that it may work for the car, but he was also thinking about emergency vehicles.

 

Mr. Medenbach noted that it would be easier because the emergency vehicles wouldn’t be coming down Cherrytown Road, they’d be going up it.

 

Mr. Baden questioned how long the private road was?

 

Mr. Medenbach stated that it was about 2,000’ long.

 

Mr. O’Donnell noted that once a road goes over 1,000’ in length there should be a pull off so that two emergency vehicles could pass each other.

 

Mr. Medenbach noted that they usually have a 24’ graded right of way. That was usually adequate.

 

Mr. O’Donnell noted that the fire chief would go out to the site and see how feasible it was and what was best. There were standards in the NY State Fire Code, but the Town could go above that.

 

Mr. Baden agreed and noted that the County Planning Board has been looking for pull offs lately.  

 

Mr. Ricks questioned if there was an emergency access that would allow them to access the mobile home park road.

 

Mr. Medenbach wasn’t sure- they could do that.

 

Mr. Ricks noted that the reserve for lot #3 was in the flood plain.

 

Mr. Medenbach noted that they haven’t really designed the septics yet.

 

Mr. Ricks questioned why the home site on lot #2 wasn’t located in the flat area?

 

Mr. Medenbach noted that they could do that.

 

Mr. Ricks questioned if the Stormwater Management included the mobile home park?  
CONTINUED APPLICATION PRESENTATION
STREAMSIDE ESTATES (cont’d)-Subdivision Approval for 7 lots, Cherrytown Road, Tax Map #67-2-43.14, AR-3 District

 

Mr. Medenbach noted that they would have to accommodate the run off of the mobile home park as it passes right through. They are going to treat the run off from the road. Most of the soils are very porous. It’s mostly sheet flow and its poor soil. Most is just absorbed unless the ground is frozen. The water will go into the pond and be treated and then goes into an existing ditch which flows into the big field and it will be piped out.

 

Mr. Moot’s comment letter- #8 was concerned with the Road Maintenance Agreement and the individual lots owning to the center.

 

Mr. Medenbach noted that they would do a Road Maintenance Agreement.

 

Mr. Baden noted that in the new code there were requirements and provisions for the need for Home Owner’s Associations in certain cases. It also deals with Stormwater Management. It should be looked into.  The Stormwater Section was under Section 125-28B.

 

Mr. Medenbach didn’t really have any problems with Mr. Moot’s comment letter.
Mr. Medenbach questioned if they would start the SEQRA Process? This was an Unlisted Action.

 

Mr. Baden noted that there were a couple of mistakes he found on the EAF. Page 3 question 4(a) should be checked as forested. Should the DEC be contacted in regards to the stream?

 

Mr. Moot noted that there was no disturbance in the 100 year flood plain.

 

Mr. Baden wanted to send this to the Highway Dept. for the access on Cherrytown Road to get his feedback.

 

Mr. Baden motioned for the TORPB to be Lead Agency. Seconded by Chairman Tapper. No discussion.
Vote:
Vote:
Ricks-          Yes                                     Baden-  Yes
Ullman- Yes                                     Rominger-       Yes
Smith-          Yes                                     Tapper- Yes
O’Donnell-      Yes
Motion carried.

 

Mr. Baden motioned for an Unlisted Action. Seconded by Mr. Ricks. No discussion.
Vote:
Ricks-          Yes                                     Baden-  Yes
Ullman- Yes                                     Rominger-       Yes
Smith-          Yes                                     Tapper- Yes
O’Donnell-      Yes
Motion carried.
CONTINUED APPLICATION PRESENTATION
STREAMSIDE ESTATES (cont’d)-Subdivision Approval for 7 lots, Cherrytown Road, Tax Map #67-2-43.14, AR-3 District

 

Chairman Tapper motioned to refer this application to the Ulster County Planning Board if Mr. Medenbach gets his revised plans to the Planning Board Office by noon on Thursday, September 23, 2010. Seconded by Mr. Baden. No discussion.
Vote:
Ricks-          Yes                                     Baden-  Yes
Ullman- Yes                                     Rominger-       Yes
Smith-          Yes                                     Tapper- Yes
O’Donnell-      Yes
Motion carried.

 

ZBA ADVISORY REQUEST
GEORGE STEFANOPOLOUS–   Area Variance for proposed lot line setbacks, 46 Lower Granite Road, Tax  
Map #76.3-2-6, R-2 District
Chairman Tapper noted that the applicant wishes to subdivide his property in 2 pieces, but the existing homes won’t meet the required setbacks of the new line. The homes are 44’ apart, so each home would only be 22’ from the new line.

 

Mr. Stefanopolous noted that one of the homes was built in the 1800’s and the other one was built in the 1940’s.

 

Mr. Baden noted that when the line gets drawn each home will require an 18’ variance.

 

Chairman Tapper motioned for a favorable advisory. Seconded by Mr. Ullman. No discussion.
Vote:
Ricks-          Yes                                     Baden-  Yes
Ullman- Yes                                     Rominger-       Yes
Smith-          Yes                                     Tapper- Yes
O’Donnell-      Yes
Motion carried.
LOT LINE IMPROVEMENT
OSCAR SCHNIDER– Lot Line Improvement, 7A & 7B Scenic Road, Tax Map #s 77.9-1-
  38.210 & 55.100., HD District

 

The Board reviewed the proposed lot line improvement. They noted that the maps don’t show the deleted lot line, nor do they have the required language included in the notes.

 

They advised the applicant to have his surveyor read the Subdivision Regulations under Lot Line Improvements to show what is needed on the plans and then resubmit. Especially show the deleted lot line.
ACTION ON MINUTES
Mr. Baden motioned to accept the July minutes. Seconded by Mr. Smith. No discussion.
Vote:
Ricks-          Yes                                     Baden-  Yes
Ullman- Yes                                     Rominger-       Yes
Smith-          Yes                                     Tapper- Yes
O’Donnell-      Yes
Motion carried.

 

Mr. Ricks motioned to accept the August minutes with the following changes:
Page 3, “note”
Page 12, “there”
Motion seconded by Mr. Baden. No discussion.
Vote:
Ricks-          Yes                                     Baden-  Yes
Ullman- Yes                                     Rominger-       Yes
Smith-          Yes                                     Tapper- Yes
O’Donnell-      Yes
Motion carried.

 

OTHER MATTERS

 

TOWN OF WAWARSING ADVISORY REQUEST

 

Mr. Baden noted that the Board is in receipt of 2 advisories from the Town of Wawarsing. One was on a Paintball business. He noted that he is a bounding owner to this request. The road used to access this parcel is in the Town of Rochester. We should have a better application to comment on. The one that was forwarded to our Board is incomplete and we should request further information.

 

Mrs. Christiana noted that the Board should reply that they would like to be forwarded the completed application to be able to make a more informed advisory.

 

Mr. Baden stated that that road is not up to par.

 

SPECIAL MEETING

 

Mr. Baden motioned for the Planning Board to hold a special meeting on October 5, 2010 for the purposes of discussing proposed changes to the subdivision application forms. Seconded by Chairman Tapper. No discussion.
Vote:
Ricks-          Yes                                     Baden-  Yes
Ullman- Yes                                     Rominger-       Yes
Smith-          Yes                                     Tapper- Yes
O’Donnell-      Yes
Motion carried.
ADJOURNMENT
Chairman Tapper motioned to adjourn, seconded by Mr.Ullman. No discussion. All members present in favor.

 

As there was no further business, at 9:40 PM, Chairman Tapper adjourned the meeting.
                                                                        
                                                        Respectfully submitted,
                                                        Rebecca Paddock Stange, Secretary