Planning Board Minutes Oct. 2011

MINUTES OF October 11, 2011 Regular MEETING of the Town of Rochester PLANNING BOARD, held at the Town Hall, Accord, NY.

Chairman Baden called the meeting to order at 7:00 PM.

Chairman Baden asked the Secretary for roll call attendance.

PRESENT: ABSENT:

Michael Baden, Chairman Leon Smith

Shane Ricks, Vice Chairman

Fred O’Donnell

Robert Rominger

Melvyn I. Tapper

Anthony Ullman

Also present:

Secretary, Rebecca Paddock Stange, Town Attorney, Mary Lou Christiana. Adam S. Paddock, Planning Board Alternate (seated in the audience).

ANNOUNCEMENTS

Trainings:

Chairman Baden announced that there were three or four training opportunities coming up. The UCPB would be having a training with the NYS DEC on wetlands on Wednesday, October 19^th at UCCC from 7-9:30pm. There was also a training on October 20^th from 8-9:30 am at the Plaza Diner in New Paltz. It is a monthly session that they have and they are good. It is on water and waste water. On October 22^nd in Millbrook there is a 3 hour training from 9am- 12pm on Climate Change. The last one was on October 25^thfrom 7:30-9:30pm in Deyo Hall in New Paltz on open meetings law presented by Robert Freeman. This training is 2 hours and is free.

Update on application:

Lypka lot improvement:

The Board reviewed this application at its September meeting and there was a question about a structure that may have been in the back larger lot. The Secretary has confirmed with the applicant’s surveyor that there is not a structure; it is just a crumbled foundation from long ago. So, the Chairman signed the maps.

Bellvale/ Open Space 2 lot subdivision:

They have completed their conditions and the maps have been signed.

Minutes:

The minutes from the September 26^th Work Shop meeting were tabled until the November meeting.

Mr. Rominger motioned to approve the August 9, 2011 minutes with corrections as noted by the Chairman being a section of Leon Smith’s Approval being left out and needing to be added back in. Seconded by Mr. Ullman. No discussion.

Vote:

Baden: Yes Tapper: Yes

O’Donnell: Yes Rominger: Yes

Ullman: Yes Ricks: Yes

Smith: Absent

Motion carried. 6 ayes, 0 nays, 1 absent

Mr. O’Donnell motioned to approve the September 13, 2011 minutes. Seconded by Mr. Rominger. No discussion.

Vote:

Baden: Yes Tapper: Yes

O’Donnell: Yes Rominger: Yes

Ullman: Yes Ricks: Yes

Smith: Absent

Motion carried. 6 ayes, 0 nays, 1 absent

NEW APPLICATION

VERNA GILLIS/ SYDNEY REISS– Lot Improvement, GLF Road, Tax Map #77.9-1-24.100, ‘H’

Zoning District

The applicant was not in attendance, but Chairman Baden noted that she did not have to be. She submitted her application and maps. This was a lot line adjustment between where the Post Office is over on Main Street in Accord and the Train Station building. The Town closed down GLF Road. They discovered that it was never private property anyway- it’s always been on the Train Station’s property and became a road by use. The Town abandoned the road and Ms. Gillis is proposing to give a piece to Reiss who owns the Post Office building to increase their parking capabilities. He looked it over; both lots would have the required acreages and road frontages. In the long run it is a good advantage to the Town because people backing out onto Main Street are a big issue. The appropriate language as required by the code was on the map.

Mr. Ricks motioned to approve the lot line improvement. Seconded by Mr. Rominger.

DISCUSSION: Chairman Baden noted that this was a Type 2 SEQRA Action by Code definition. There were no SEQRA requirements.

Vote:

Baden: Yes Tapper: Yes

O’Donnell: Yes Rominger: Yes

Ullman: Yes Ricks: Yes

Smith: Absent

Motion carried. 6 ayes, 0 nays, 1 absent

CONTINUED APPLICATION AND PUBLIC HEARING

PEN ULSTER, LLC, c/o Ralph Brunswick, Amended Major Subdivision, Approved 27 lot subdivision (Decision PB1991-9) with lots to be combined to become 11 lots, private road “Ridgewood Rd.” off Rock Mountain Road and Palentown Road, Tax Map #60.1-5-(lots 1-27), R-2 Zoning District

(2011-09SBD)

Chairman Baden noted that they would be opening the Public Hearing at some point. There was a little discussion that the Board had to go over with the applicant first and then the Board would be doing a SEQRA Determination. The Board referred this application after September’s review to the Accord Fire Dept., the Town’s Highway Dept., the Ulster County Planning Board, the Town’s Planner- Clark Patterson Lee- the Board asked them to review the waiver request list and once we received a copy of a Stormwater Plan, Chairman Baden asked the Planner to review that. That SWPPP was from 2005. There was a copy of this on file in the PB Office. We heard back from the Town’s Highway Superintendent by letter dated September 30, 2011 stating that the roadway needed to be clear-cut and brought up to subdivision regs. Chairman Baden reminded everyone that the roadway included the first portion of Ridgewood Road which crossed over 3 lots that were not part of this subdivision and then continues into the subdivision. The Highway Superintendent continued to note in his letter that the roadway needed to be regarded to road specifications, item needed to be added where needed and then the turn around needed to be constructed. Chairman Baden notified the Board that the turn around had been moved about 100’ further from where it was first showed? Once Mr. Kelder went out and did a site inspection, he suggested that the turn around be moved slightly due to better conditions for constructing it. The turn around is now at 90’, which is up to Town Standards. Mr. Kelder’s letter also mentioned that the road serving lots 1, 2, & 3 which was the front portion needed to be brought up to Town Standards. What the Board heard back from Accord Fire Chief, Mr. Dunning, said that they recommended any and all roads in the subdivision be a minimum of 20’ in width to support the fire apparatuses that may be needed and the cul-de-sac be a minimum of 90-100’. The Chairman had a conversation with Mr. Kelder regarding this and Mr. Kelder’s opinion was that the Town’s Subdivision Regs said 18’, so they shouldn’t be asking an applicant to go beyond that unless there was a significant reason. He felt that 20’ was asking too much for the width.

Chairman Baden noted that he had sat down with the Secretary and the Town Attorney and they had gone through the original files for this subdivision and looked at the approvals. This was considered 2 sections- section 1 and section 2. There is a Road Maintenance Agreement that Mr. Brunswick supplied to the Board for Section 2, which is the 27 lots that he is reducing to 11 lots. A Road Maintenance Agreement or an easement could not be located for Section 1, which consisted of the front 3 lots. The Board needs to see that Mr. Brunswick has some sort of legal access over those first 3 lots and the Board needs a copy of the RMA. There is a draft copy in the file, but it was not signed and it was never filed.

Mr. Brunswick had thought that the RMA that he supplied covered those first 3 lots.

Mrs. Christiana, Town Attorney noted that Mr. Brunswick’s RMA did not cover the first 3 lots which were part of Section 1. It refers to the map.

Chairman Baden agreed and noted that it appears that there is a separate RMA for each Section.

Mr. Brunswick stated that he would have his title company research the matter and if there isn’t one it shouldn’t be too hard to get one together.

CONTINUED APPLICATION AND PUBLIC HEARING

(2011-09SBD)

Mr. Brunswick found it hard to believe that throughout the planning process they wouldn’t have a RMA for Section 1 on file.

Chairman Baden noted that it’s discussed at length in the minutes, but without the signed filed copy, it doesn’t exist.

Mr. Brunswick would either find it or get it.

Chairman Baden noted that the County PB came back with comments; however they did not have a quorum at its last meeting. The Board is bound by NYS Law to treat that as a ‘no reply’. They have 30 days from the time that they receive the referral to reply, so the PB cannot take any action until they do reply. Until the road is resolved the PB wouldn’t be taking any action anyway. The County PB did send the comments that they would have made. The County PB makes comments regarding to Stormwater- they did not receive a SWPPP because at the time that this application was referred the PB Office did not have a copy. Given the new state regulations regarding Stormwater effective May 1, 2010 an updated SWPPP that meets these requirements is also absent, so they are suggesting that the 2005 SWPPP needs to be updated to the 2010 standards because that is the current state standards. Regarding roads they noted that the applicant would need to meet with the Town’s Highway Dept. to ensure that the roadway system meets the Town standards- the PB is doing this. UCPB notes that the original 27 lot subdivision was previously approved in 1991, however given the lack of development on the site and the lapse in time a recertification of the septic systems and the 100% reserve areas may be necessary. They recommended that the Town require that the applicant work with the UC Health Dept to ensure the septic systems and reserve areas were still adequate. The PB did contact the Health Dept. and the Board did receive a reply back from the UCHD saying that the applicant is required to submit a revised Mylar for approval and file same with the UC Clerk’s Office.

Chairman Baden noted that the Board did hear back from the Town’s Planner where they reviewed the waiver requests. At this time they reviewed these and were going to decide based on the Planner’s opinion whether or not they wanted to or didn’t want to grant waivers.

Chairman Baden didn’t think that the Planner was aware that the roadways were already clear. The Chairman had driven up on the site and as far as he was aware all the roadways were roughed in.

Mr. James noted that they have recently had some vegetative cover over them. In some cases they are almost reverting back to their natural states.

Chairman Baden noted that the applicant’s proposal was that some of these roadways would be utilized as the driveways?

Mr. James replied that was the intention to a certain point. In some cases, yes, in some cases not.

Mr. Brunswick didn’t think they would ever be used as driveways.

CONTINUED APPLICATION AND PUBLIC HEARING

(2011-09SBD)

§125-14 B – Sketch Plan to include existing and natural features analysis.

The 1989 subdivision plan included the location and extent of existing and natural features called for in §125-14 B; however, with the rough layout of the then proposed road network, the current tree cover is different in comparison to the 1989 plans. At a minimum, this information should be included to show the extent of any proposed clearing / disturbance.

Chairman Baden felt that this requirement could be waived.

Mr. Rominger motioned to waive 125-14(B). Seconded by Mr. Ullman.

DISCUSSION:

Mr. Tapper questioned which roadways were to be used as driveways?

Mr. Ricks questioned if they needed to vote on all of these individually or if they could vote on them all at once at the end?

Chairman Baden agreed and noted that they would go through them and vote on them all at the end.

Mr. Brunswick noted that the only area that would be used as a driveway would be the area between lot 1 and lot 5 which would be the driveway used to get to lot 2. So, that road there which is not part of the original road- and that was it. Every other road is just a 10 year old roughed in road which was seeded and overgrown. All the roads down in lot 11- and all of the other roads are not going to be roads anymore. They are just getting overgrown.

Chairman Baden noted that the plan wouldn’t be to use them?

Mr. Brunswick couldn’t imagine anyone would. They don’t lead to house sites, so he couldn’t imagine anyone would use them. In lot 3 there is a road that goes to a cul-de-sac area- someone might use it—but they aren’t proposing it.

Mr. Tapper asked how extensively these roads were built.

Mr. James answered- more than you would do for a driveway.

Mr. Brunswick noted that they have 10 plus years of vegetation and the areas around it have all been seeded.

§125-14 D – Sketch Plan to include all streets/roads, streams, water, sewage, gas and power lines within 500 feet of the subdivision.

The 1989 plan does not appear to include information on the location of nearby power lines, which would be utilized in the subdivision. At a minimum, this information should be included. In addition the distance from Ridgewood Road to Rock Mountain Road should be included along with its existing physical state.

CONTINUED APPLICATION AND

PUBLIC HEARING

(2011-09SBD)

Chairman Baden thought that they did need to see the section of road between Rock Mt. Subdivision and Palentown Road.

Mr. James questioned if he needed to show the entire road or just the distance?

Chairman Baden noted that because they were going to be looking at it for conditions and ultimately they would probably need to see a road profile for it- it could be done on a separate sheet, but he felt that the Board needed to see that road and if there were any existing power lines or proposed easements. He didn’t think this waiver would be granted.

Mr. Ricks questioned if Chairman Baden was talking about requiring a road profile for an existing road?

Chairman Baden noted that the applicant was going to have to re-grade and widen that road.

Mr. Ricks questioned if the grade was wrong on it too?

Chairman Baden noted that the Highway Superintendent’s letter indicated that it needed to be re-graded.

Mr. Ricks wanted to know if the re-grading referred to the final grading and touching up.

Chairman Baden did think that the Highway Superintendent’s letter referred to final grading.

Mr. James noted that they weren’t changing the profile.

Mr. Ricks didn’t think a road profile needed to be done because they weren’t changing it.

Chairman Baden noted that he’d like to see what was involved for stormwater too. They may need to re-grade the road for stormwater issues too. That waiver would not be granted.

§125-15 B(5) – Preliminary Plan to include locations of parks/public grounds, permanent buildings, open space easements and other significant features.

In addition to parks/public grounds, this subsection also calls for information in regards to significant features. The extent of proposed tree cover/disturbance should be shown at a minimum.

Chairman Baden felt that this waiver could be waived.

CONTINUED APPLICATION AND PUBLIC HEARING

(2011-09SBD)

4. §125-15 B(8) – Preliminary Plan to include existing contours at intervals of 2-feet.

The 1989 subdivision plan includes 5-foot contours – this waiver is acceptable.

Chairman Baden felt that this waiver could be waived.

§125-15 B(14) – Preliminary Plan to include approximate final grades in areas of cut or fill.

No grading plan was included with the previous submission to review. Although the roadway base currently exists, a formal grading plan is required as part of the preliminary plan submission. The plan should show the grading as a result of the past improvements and the grading that is proposed to occur at the cul-de-sac.

Mr. Ricks could see for this where they are extending the cul-de-sac, but for the other section of road which is basically off of their property he didn’t see any sense in doing a road profile being that they weren’t changing anything.

Chairman Baden thought that maybe they could grant it with a little caveat that if the SWPPP when it is updated requires more information that they may need. Maybe they could grant this as a ½ of a waiver.

§125-15 B(19) – Preliminary Plan to include erosion and sedimentation control plan.

See comments for “Stormwater Pollution Prevention Plan Report/Plans” below

§125-15 B(20) – Preliminary Plan to include stormwater management plan (SWPPP).

See comments for “Stormwater Pollution Prevention Plan Report/Plans” below

Chairman Baden questioned if any stormwater facilities have been constructed?

Mr. Brunswick answered no.

Chairman Baden questioned how much disturbance was proposed in order to widen and grade the roads?

Mr. James noted that it would be about 30,000 sf up to the cul-de-sac.

Mr. Brunswick noted that the disturbance would be less than 1 acre.

Chairman Baden noted that in reading the SWPPP he noticed the plan came about as a result of a DEC violation. What was that?

Mr. James answered that it was disturbance without temporary seeding.

CONTINUED APPLICATION AND PUBLIC HEARING

(2011-09SBD)

Chairman Baden noted that based on the fact that the County PB came back with an advisory comment saying that the SWPPP needed to be updated and the Town Planner has also advised this, Chairman Baden felt strongly that this should be done. He understood that it was only 6 years old, but Stormwater laws took a major change in 2010 and they were approving this now. He understood that it was an amendment of a subdivision, but they were approving it now and approving the road now under the current standards. He felt that the SWPPP should be modified to reflect. He didn’t know to what extent it would need to be done, but it should be looked into and modified.

Mr. O’Donnell noted that if it was changed in 2010 he would have to agree.

Mr. Rominger agreed with Mr. O’Donnell.

Chairman Baden noted that they would not waive items 7 & 8 and even if they gave preliminary approval, for Final Approval the requirement would be to complete a new SWPPP.

§125-15 B(17) – Preliminary Plan to include evidence of water supply.

Documentation of water supply from the existing home should be included.

Chairman Baden felt that the applicant had UCHD approval for water supply and that was enough for the PB on any other subdivision, so this should be waived.

9. §125-15 B(21) – Preliminary Plan to include documentation of sewage disposal.

Any previous approvals and/or documentation regarding sewage disposal should be included as part of the re-subdivision application package.

Chairman Baden noted that it’s also going to be a UCHD issue and would be part of the decision to require UCHD approval prior to issuance of building permits. With lots at this size he didn’t see any particular issues and the soils didn’t seem to indicate any particular issues with the sewage disposal.

§125-15 B(24) – Preliminary Plan to include detailed landscaping plans.

If no landscaping is proposed as part of the improvements, this waiver is acceptable.

Chairman Baden noted that the Planner indicates that this is acceptable because no landscaping is proposed as a part of the improvements so this will be granted.

CONTINUED APPLICATION AND PUBLIC HEARING

(2011-09SBD)

§125-15 B(27) – Preliminary Plan to include part 1 of SEQRA Long Form EAF.

SEQRA Long Form Part 1 was submitted and reviewed per this subsection. The first page will need to be completed prior to final approval.

Chairman Baden noted that a long EAF has been since submitted. It wasn’t originally submitted, but since the last meeting the Board had required it and it has been submitted. That waiver doesn’t pertain anymore.N/A

§125-17 E – Final Plan to include front building lines to be shown.

Front building lines or approximate house locations for the new 11 lots should be shown in accordance with this subsection. The sketch plan shows only the previously approved buildings and sewage disposal areas (SDS) for all 27 lots. New locations would eliminate any confusion and highlight the approximate areas where driveways would be located.

Chairman Baden noted that this was a final plan issue.

Mr. James noted that the reason he showed the other lot lines was just to show what the original subdivision layout looked like. N/A

§125-17 G – Final Plan to include total tract boundary lines with distances and bearings.

No changes to the tract boundary lines; waiver acceptable.

Mr. James noted that they would be doing this for the final plan. N/A

§125-17 H – Final Plan to include certificate of all improvements installed or approved.

Although the entire roadway was previously approved by the Town, a certificate should still be provided to the Town to ensure that the roadway is fully installed as shown in the revised plans. A detailed description of the changes between the prior roadway and the proposed roadway and what will become of the previously laid out roadways.

This was relevant to the final plan. N/A

§125-27 – Erosion and sedimentation plan.

See comments for “Stormwater Pollution Prevention Plan Report/Plans” below

§125-28 – Stormwater management plan.

See comments for “Stormwater Pollution Prevention Plan Report/Plans” below

Chairman Baden noted that these actually went with the SWPPP and they would not be granting that waiver.

CONTINUED APPLICATION AND PUBLIC HEARING

(2011-09SBD)

Mr. Rominger motioned to grant the following waivers from the Zoning Code:

125-14B, 125-15B(5), 125-15B(8), 125-15B(17), 125-15B(21), 125-15B(24)

Seconded by Mr. Tapper. No discussion.

Vote:

Baden: Yes Tapper: Yes

O’Donnell: Yes Rominger: Yes

Ullman: Yes Ricks: Yes

Smith: Absent

Motion carried. 6 ayes, 0 nays, 1 absent

Chairman Baden motioned to grant the waiver for 125-15B(14) noting that the PB would grant the waiver to show the grading in the sections of roadway that already exist. They will not grant it for the new road. This waiver is pending if new road construction becomes required under the SWPPP.

Seconded by Mr. Rominger.

Vote:

Baden: Yes Tapper: Yes

O’Donnell: Yes Rominger: Yes

Ullman: Yes Ricks: Yes

Smith: Absent

Motion carried. 6 ayes, 0 nays, 1 absent

Mr. Brunswick wanted to discuss the Storm Water Management Plan. Having read what Clark Patterson Lee had to say about the existing SWPPP and their understanding of the lack of acreage to be disturbed under the new plan he was dismayed that the feeling of the Board was not to go along with their recommendation on this and he wanted to bring to the Board’s attention again the question of disturbance as it relates to this action is appropriately addressed in this treatment rather than the other recommendations regarding a new SWPPP because of the fact that as has been discussed it is currently 27 individual lots and it is a situation where in fact the disturbances are greatly decreased by virtue of the roads not being used and the new disturbances is less than 1 acre. So, he thinks that he would ask the Board to consider whether the recommendations of the handling of this issue, and it does leave open the issue of future SWPPP needed if additional future development is done it would require a new SWPPP. He asked the Board to consider a more appropriate treatment for this situation.

Mr. Ricks felt that this could be waived because the subdivision is greatly reducing the stormwater problems. With all of those roads being seeded and overgrown… the only road that they are talking about- the whole other part of the road exists already and all they are adding is the cul-de-sac and he didn’t see how much additional stormwater one cul-de-sac could produce.

Chairman Baden questioned how far that road was going to be from Rock Mountain Road all the way in?

Mr. James noted that the end of the first section with the first 3 lots was +/-1,300 feet.

CONTINUED APPLICATION AND PUBLIC HEARING

(2011-09SBD)

Chairman Baden viewed the Section 1 subdivision map and scaled it out and noted that if it was a straight line it would be +/-1,600’.

Mr. James calculated the roads to be +/-1,250 for the section 1 road, +/-1,300 for the section 2 road, and then the new section with the cul-de-sac is going to be about +/-300 feet totaling 2,800’.

Mr. Ricks questioned how this would affect it? Stormwater shouldn’t affect the section 1 part of the road?

Chairman Baden noted that it’s the access and it needs to be upgraded, so it does affect it.

Mr. Ricks noted that its access, but it’s over other people’s lands.

Chairman Baden noted that that is Mr. Brunswick’s right of way. Without that he cannot do the subdivision.

Mr. Ricks questioned what would happen if someone had an existing lawn there and he would go in there and tear up their lawn and dig ditches?

Mr. Brunswick noted that existing conditions were such that the 18’ minimum was already there.

Chairman Baden noted that it wouldn’t be tearing up significant.

Mr. Ricks noted that if they are requiring it to have the SWPPP that may require extra ditching to be put in or requires detention ponds- now you don’t have the right of way width and you are on other people’s property. He just didn’t see it needing change as it is an existing road.

Chairman Baden noted that it was being used but it was never brought up to Town Standards as far as they can tell.

Mr. Ricks thought that the lower half was.

Chairman Baden noted that it never was.

Mr. O’Donnell noted that the total length was +/-2,800’- there are issues there and one of them might end up on the initial section. It either needs to be widened to 20’ or put a pull off in at 1,000’.

Chairman Baden noted that Mr. O’Donnell was talking fire access issues, which is why the Fire Chief was asking for 20’ wide so that 2 fire trucks could pass each other.

Mr. O’Donnell noted that the 2 options are that you put it in at 20’ or you put a pull off in at 1,000’.

Mr. Brunswick didn’t have a problem with 20’ for the whole road- there was plenty of room.

CONTINUED APPLICATION AND PUBLIC HEARING

(2011-09SBD)

Chairman Baden noted that would make it easier because what Mr. O’Donnell was leading to was doing fire truck pull offs.

Mr. Brunswick understood noting that he had spoken with Mr. Dunning the Fire Chief.

Chairman Baden noted that would solve the problem and the whole road would be constructed to 20’. What would that now do to the disturbance area?

Mr. Brunswick noted that they may need to move the cul-de-sac over a little.

Mr. James noted that if they needed to consider the portion of road in section 1 all the way out to Rock Mt. Road he didn’t see how they would be under an acre.

Chairman Baden noted that if the front section isn’t up to Town Standards, it does’ matter how good the back section is.

Mr. Tapper noted that there may be someone in the public that could shed some light on it from the first section.

Chairman Baden agreed noting that they would get to that in the Public Hearing. He then asked if they wanted to table this discussion until they hear from the public.

Mr. Brunswick noted that he wanted to calculate the over/ under 1 acre disturbance issue because he feels that it is crucial to the question.

Chairman Baden agreed to wait until they hear from the public and until the applicant presents those calculations to further discuss.

Mr. Ullman thought that the Board should also get some additional feedback from Clark Patterson Lee because they thought that the SWPPP was appropriate.

Chairman Baden noted that they did point out to that if they weren’t disturbing 1 acre it wasn’t required, but the drainage designs should meet the Town’s drainage criteria. They would need the Town Planner to verify that the applicant’s drainage design adhered to the Town Code.

Town Attorney, Mary Lou Christiana thought that they should also ask the Planner what should be included in the considerations. Do they include the portion of road in section 1 that is being used currently?

Chairman Baden’s own feeling was that if it was being upgraded it was disturbance.

Mr. Ricks noted that the roadway was already there and they were adding a cul-de-sac- should they add the center part of the road into that as well as it was already constructed?

CONTINUED APPLICATION AND PUBLIC HEARING

(2011-09SBD)

Chairman Baden noted that in this case if you drove that road you would see that it has been constructed, but it has not been maintained and is not up to Town Standards. He agreed that if a road was already up to Town Standards that it didn’t count, but in this case it would be disturbed.

Mr. Ricks noted that they needed to know what they were calculating.

Chairman Baden noted that he would have the Town Planner get in touch with Mr. James to go over all of this and Clark Patterson Lee can give the Board his advisements on what makes up the acreages that need to be calculated.

SEQRA DETERMINATION FOR PEN ULSTER:

Chairman Baden noted that the Town of Rochester Planning Board was the Lead Agency and this was an Unlisted Action. He compiled a draft SEQRA Determination of Part 2 to go over and distributed to the Board for review. The Board reviewed Part 2 and categorized the questions below as small to moderate impacts:

1. Will the Proposed Action result in a physical change to the project site? Yes. Other impacts: small to moderate impact. Potential addition of 11 single family homes.

6. Will Proposed Action alter drainage flow or patterns, or surface water runoff? Yes. Other impacts: small to moderate impact. Possible change to existing drainage patterns.

Mr. Ricks motioned for Negative Declaration under SEQRA. Seconded by Mr. O’Donnell. No discussion.

Vote:

Baden: Yes Tapper: Yes

O’Donnell: Yes Rominger: Yes

Ullman: Yes Ricks: Yes

Smith: Absent

Motion carried. 6 ayes, 0 nays, 1 absent

Mr. James just wanted to add one item- when they redesigned the lots they used some of the old lot lines especially in the area between lots 10 & 11- its really kind of jagged and he’d like to draw straight lines.

Chairman Baden didn’t think the Board would have any problems with that at all. Before they voted on it they’d have to see the revisions. If he wanted to incorporate that into the revisions when they add the road that would be fine.

Mr. Brunswick under the provisions of the escrow being held currently for the construction of the original 27 lots there are provisions in the agreement amongst the Town Board, Planning Board, and the applicant for that to be reduced.

CONTINUED APPLICATION AND PUBLIC HEARING

(2011-09SBD)

Chairman Baden saw it as the Board was issuing a new approval so thought that that entire bond could be reverted back at the Town Board’s discretion. The applicant would then have 3 years under the new subdivision preliminary approval to install the roads. If the applicant chooses not to install them within the 3 years, then he would have to do a new bond. In his mind he envisioned that if the applicant was proposing to install these and complete them within 3 years there would be no bond and the existing bond would be reverted back. The Town Board would only get involved if the applicant was requesting a new bond for the new section of the road and according to the new Town Code he’d have 3 years to complete that without establishing the bond.

Town Attorney, Mary Lou Christiana agreed but noted that right now there is a subdivision that is approved- upon approval they could recommend to the Town Board to return the original bond, but not until Final Approval is obtained.

Mr. Brunswick was asking for an understanding of the process of how and when the bond would get reduced and reduced to some number related to the new construction. He is confused and concerned about the process.

Chairman Baden noted that when and if the applicant received final approval for the amended 11 lots, it would be the PB’s recommendation to the Town Board to eliminate the existing bond and release that. Based on the fact of the extenuating circumstances, the Board can ask the Highway Superintendent to create a cost estimate of the road construction and they could potentially ask the Town Board to make reduce the existing bond. The Town Attorney would have to do some research into that.

Chairman Baden questioned if the driveway into lot 11 was already created?

Mr. Brunswick noted that it was there and was very nice and there was a curb cut approval for it when it was constructed.

At 8:15pm Chairman Baden opened the Public Hearing. He asked Mr. James to give a quick overview of the project.

Mr. James noted that in 1991 this project was approved for 27 lots on +/-134 acres. There is a road that comes in from Rock Mountain Road- there are 2 sections. The first section was 3 lots and that led to the 27 lot subdivision. They’ve revised it down from 27 lots into 11 lots. Ridgewood Road will now only be extended to about 300’ into a cul-de-sac and the remaining lots will come off of driveways off of Ridgewood Road or Palentown Road. All of the original sewage disposal site will be used for the new lots. There will be no need to do any further septic design done.

CONTINUED APPLICATION AND PUBLIC HEARING

(2011-09SBD)

David Gubitz was recognized to speak. Mr. Gubitz noted that he was a senior partner in the law firm of Jacobawitz and Gubitz and he was going to say that he was listening to the SEQRA and he is a real estate attorney. He owned lot 23 which was lot #8 on this map. The Board has pretty much touched on the things he had to say. When he bought his lot he relied on the fact that there was a $250,000 performance bond and he knew that was going to someday get the road done. He submitted a piece of the Section 1 Subdivision map that said “proposed private road to be constructed using the design standards for a major road with the exception of the surface type, which was gravel, the proposed road shall be constructed conforming to the Town of Rochester typical road cross section. That’s a vain hope, that’s never going to happen. He’s been listening to them talk about the existing road- there is no existing road that should have been done from that 1991 subdivision. It was never done. Gary Johnson who did the subdivision was a very, very nice guy and whenever they had a problem he would come up and he would fix the road and snow plow—Mr. Brunswick never did. He then submitted two letters for the record- that he sent to Mr. Brunswick’s attorney from May 12, 2008 and August 10, 2009, he’s been fixing that road and its been washing out and the money that’s been put into this road. Mr. Brunswick hasn’t paid any attention to it. The roads that Mr. Brunswick put up that went to lot #2. Before he did that there was never any problem.

Mr. Gubitz continued, after he did that that water catches the water and hits Ridgewood Road and washes out the section 2 part of Ridgewood Road and then washes out the section 1 part until it gets to the low part of Section 1. They’ve been filling that in and Mr. Brunswick has been no help at all. So basically the impact of this whole project which is generally a great design, but what the impact is that the lots on Section 2 if they follow the shortest route- figured that they would take the new roads down to Palentown Road and avoid the whole Rocky Mountain Road thing and the effect of this new subdivision which is generally a good idea, is to take these 10 houses and these 10 houses are now going to be going through the road that goes through section 1. That’s the main impact of this subdivision and as the Board has said, that impact can be mitigated by making the road through section 1 come up to Town Standards and if the road through section 1 is being brought to the same standards as the road for section 2 that is required- and again that road has never been made to the Town’s standards on the Section 2. So, for approximately over 20 years, the Section 2 road was never built to the standards that were represented to this Planning Board. If Mr. Brunswick does that, hooray for him and that is great. In the interest of fairness, since this new revision is going to dump the 10 houses down onto section 1, it is the most appropriate and reasonable thing to have those 10 lots share in the maintenance expense for the section 1 section. If this subdivision were brought before the Board 20 years ago like it is now, the Board would have required that all of the lots share in the maintenance of the roadway through section 1.

Gloria Mirsky, owner of a lot in section 1 was recognized to speak. She wanted to re-iterate that on section 2 the water comes rushing down the driveway onto Ridgewood Road. She submitted pictures to the Board. Some were taken a day or so ago of the water moving the rocks around. That’s only a little bit of what section 1 looks like. Her neighbors have it even worse. That is really a concern. Section 1 is being impacted a lot by a lot of water run off from section 2. This is some steep land. It is not a gentle sloping property and there is a lot of water and wet areas on this property. So, they brought the DEC in when Mr. Brunswick cut these roads in without any paperwork or applying to the Board. He just brought in some machines and just started cutting the roads in like crazy, so the DEC came in and wanted to take a look at what he was doing and it was cut it wasn’t

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seeded. The DEC was concerned with some erosion and the culverts were not properly done the drains around the culverts- they weren’t the correct materials. These pictures were taken a few years ago and some were taken a few years ago. The culvert is dumping water right onto the property. They are concerned and the DEC was concerned with how this was done.

Mr. Tapper questioned what road she was talking about.

The only road when she moved there was from Rock Mountain Road, Ridgewood Road to David Gubitz house. She built her house in 1991. In 2004 big machines came in and started clear cutting. There was a wetland. After the roads were built water just started flowing and it flows down Rocky Mountain Road and now the Highway Dept. has to fix that. In front of her neighbors house there is a big dent. In 1991 when she built her house she had no problems until 2004.

Chairman Baden pointed out that that road layout was approved as part of the 1991 subdivision, but it was not constructed at that point. His suspicion was it was constructed somewhere around 2004 because the Storm Water Management Plan was dated 2005.

Ms. Mirsky did agree that this was an improvement on 27 lots.

Michael Moreno was recognized to speak. He and his partner resided at 36 Ridgewood Road which was the last house in section 1 and they are right at the dip in the road and where the water collects. Basically it comes off of the road in lot 2, comes into the culverts, reaches the culverts and then washes out the road. They also have the same issue in their driveway because of this. He does have a copy of the section 1 RMA from 1991. He was only supposed to spend a maximum of $300 per year.

Scott Slayton, also of 36 Ridgewood Road was happy with the decrease in the amount of lots but from a section 1 perspective, they don’t feel like they have any financial responsibility to bring the road in section 1 up to code in order to allow for this development. So, unless there is an agreement there, that is not going to happen.

Town Attorney, Mary Lou Christiana noted that she will have to look at the recorded copy to see if it gives access to section 2.

Amy Friedman was next to speak. Ms. Friedman was a bounding owner from the Town of Olive and she lived on Haver Road, which was a mountain. She noted that lot 3 borders her property and it is very steep. There is a document that says it is gently graded and no wetlands. She has a pond fed by an underground spring off of that property—and it is wet. The Rochester area is very swampy and wet and marshy.

Chairman Baden noted that he checked on the DEC website and there were no protected wetlands on this property. He then asked if Mr. James would label Haver Road on the map.

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Mr. Ullman motioned to keep the Public Hearing open. Seconded by Mr. O’Donnell. No discussion.

Vote:

Baden: Yes Tapper: Yes

O’Donnell: Yes Rominger: Yes

Ullman: Yes Ricks: Yes

Smith: Absent

Motion carried. 6 ayes, 0 nays, 1 absent

Mr. Brunswick noted that when both roads are brought up to specs the run off issues would be addressed. He agreed that there were run off issues now.

Chairman Baden questioned if they would be combining the RMA’s into 1 document?

Town Attorney, Mary Lou Christiana noted that they would have to get the existing owners to sign onto a new one.

Mr. Ullman motioned to take a 2-3 minute recess. Seconded by Mr. Tapper. No discussion. All members present in favor.

Mr. O’Donnell motioned to bring the Board out of recess. Seconded by Mr. Rominger. No discussion. All members present in favor.

CONTINUED APPLICATION, SEQR REVIEW, AND 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 Code for expansion of a non-conforming use membership club to include expansion of parking area, additions to main house and office, expansion of pond and landscaping, new construction of a gym/fitness barn, outdoor meditation pavilion, and sauna building, additions of septic systems and well, and removal of garage structure, Kyserike Road, Tax Map #69.4-2-2, ‘AR-3’ Zoning District

Ms. Harari was present along with Barry Medenbach, PE, and John Cappello, Esq all present on behalf of the application.

Chairman Baden noted that the Planning Board held a Workshop Meeting for this application on September 26, 2011 where the Board reviewed SEQRA and made a Negative Declaration. They have circulated the Negative Declaration to the Involved and Interested Agencies, the Town Clerk, and the County Planning Board. This was a Type 1 Action and therefore the Negative Declaration was required to be published in the Environmental Notice Bulletin on October 5, 2011. The Board is in receipt of an updated site plan dated October 5, 2011. He requested the engineer inform the Board of what was updated.

Mr. Medenbach noted that they added the fence along with property line of the Feldman residence into the adjacent wetland area. The reason for that is because that is where the meditation pavilion is. That adjacent area the wetland is all being mowed now.

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Chairman Baden noted that that was his concern if they were putting that in the 100 foot buffer area it would have to get referred back to the NYS DEC.

Mr. Medenbach noted that it would be a part of their application. He was going to resubmit these plans to them.

Chairman Baden noted that he personally would rather that they stopped the fence at the buffer area because he thought if they went into the buffer area they’d have to comment on it before they could continue.

Mr. Ricks noted that this was her own property, correct? As far as needing the fence for privacy in that area—there wouldn’t be anything to screen it from—correct?

Chairman Baden questioned if the applicant would stop the fence before the buffer area? His concern was putting the fence up in the buffer area the DEC would have to comment on it and he didn’t really see that it was going to mitigate much in relationship to where the house was.

Mr. Medenbach noted that they would take it out of that area. He identified it as a 6’ high fence. They have not identified the material. The discussion with the Board at the work shop meeting was that they didn’t really care. It would be a solid fence- maybe a wooden or stockade. There were a lot of materials and products to choose from now. The length would be +/-380’.

Chairman Baden noted that the other changes that were made were the additions to the house on the east and west sides were reduced in size. They added a note about closing the existing entrance and the proposed gate. They added the gate detail as well and noted the pavilion being enclosed and a note about the Ulster County Highway Dept. permit to put the driveway in and they had mentioned clearing site lines. They tweaked the footprint of the building as well- Mr. Medenbach noted that he didn’t think it was more than 200 sf.

Chairman Baden noted that at the last meeting they did receive their comments from Clark Patterson Lee and those were incorporated into the Board’s SEQRA Determination. The Board also received comments from September 21^st from the Town’s Historic Preservation Commission and on October 5^th comments from Ms. Harari’s Attorney, and on October 7^th comments from Attorney David K. Gordon, who is Mr. Feldman’s attorney. Chairman Baden had a telephone conversation with Scott Ballard of the NYS DEC on October 7^th and he confirmed that the existence of potential environmental impacts and potential impacts on endangered or threatened species in habitats related to the site do not exist. The Board also received at the last meeting a packet of all Mr. Medenbach’s communications with the DEC. The majority of these the Board already had. What was new was the actual application for the freshwater wetlands permit. There was also an email review of the SWPPP from the DEC Division of Water dated 1/24/11.

Mr. Cappello noted that they submitted a letter responding to concerns that he had heard from the Board at the meeting on the 26^th. If the Board has any questions regarding that he would be happy to provide any additional information.

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Chairman Baden noted that the two issues that Mr. Cappello was speaking about at the September 26^thmeeting was about overnight guests and the other issue was about events taking place in the meditation pavilion. Both attorneys in their communications to the Board have outlined their opinions on these issues and a number of issues that were brought up by Mr. Gordon in his submittal are issues that the Board has already discussed and determined under the SEQRA Determination. They can have further discussion if anyone wishes.

Chairman Baden further noted that he did reply to the UC DPW on their 3 concerns. He re-iterated to them that a gate would be installed for emergency access at the west access. They noted that it was not clear where the construction access would be. The Board received that answer from the applicant- the existing westerly drive will be utilized initially as some construction traffic would use this entrance until the new entrance was installed and then all traffic would be directed to the new entrance and the old one would be gated and closed. And the 3^rd note about the clearance has been addressed with the site plan map note.

At 9PM Chairman Baden opened the Public Hearing and reminded everyone to speak to the Board, not direct comments to the applicant. He questioned if anyone needed an explanation of this project again. If not he would just move forward with the public comment.

Mr. Ricks questioned the enclosures added on the topic of special events that Mr. Cappello submitted-they were included to represent that other places rent halls or the size of them?

Mr. Cappello noted that there were some questions raised at the last meeting in discussion as to whether weddings or special events were typical at membership clubs or facilities. He thought it was a traditional use of this type of facility. He did a quick search of country clubs and all types of clubs that offer this.

Chairman Baden recognized David Gordon, Mr. Feldman’s attorney, to speak. Mr. Gordon noted that he had written a letter on behalf of Mr. Feldman. He wanted to make a couple of comments which were already in the letter, but he had a couple of things he wanted to point out. First, with respect to the events and the noise, he pointed out in his letter on page 3 that there are very specific town and NYS guidelines for noise. NYS has a DEC guidance document- the Town’s is right in the Town Code. His concern is that the SEQRA Determination for this type of an application is based on a neighborhood or regional scale- how does this effect the Town as a whole? The Town’s Special Use Permit Laws and the noise laws effect direct neighbors. The basic purpose of a Special Use Permit is to ensure that the type of use that gets a Special Use Permit doesn’t negatively impact neighbors and that is really the core of the concern is here. In this case the operative standards of 55 decibels at the property line and also an increase of 10 decibels. There is no way that an outdoor event, especially one that had amplified music is going to be able to achieve those standards. There has been no demonstration that they can meet that and as a practical matter they can’t meet that. The only possible way to do it is to have the entire event in the enclosed pavilion. And though it has been discussed by the Board a little bit a couple of weeks ago, it is not possible in terms of the numbers they are proposing. For example a 200 person event with a band in a 2,500 sf pavilion gives each person approximately 12 sf. Two people speaking together would take up 25 sf over the entire building. Another example at the beginning of this meeting the crowd was larger than it is now

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and people were concerned about the first project that was up; they were looking at a density of approximately 4 times what it was during the course of that meeting. As a practical matter it couldn’t happen over the course of an event and if it did happen the one thing that is almost dead certain is that the windows are going to open because you can’t stay in that room for that long and there is no way for the sound to be controlled. He asked the Board that as they considered this for a Special Use Permit, and for a Site Plan as well- the numbers do not add up to have events with amplified music in a 2,500 sf pavilion- particularly with a band stand. It just doesn’t work. The other point that he wanted to raise was really related to the zoning issues. One was touched on by the Board at the workshop meeting. That was the question as to whether or not there was a previous approval for lodging. There is no approval for overnight commercial lodging if you look at the previous approvals it was never mentioned in there. There was some oblique discussion in one of the minutes going back to 2003/2004 but it was never written in the approvals and it didn’t exist back then and it doesn’t exist now. He believed that the Chairman was behind that as well and he didn’t hear any objection from anyone on the Board and he would ask the Board to make that finding. Also the basic zoning categorization for this project is a membership club and the essential definition of a membership club in the prior zoning, which is no longer in the 2009 superseded zoning law, and this has been grandfathered as a result of that is that the activities are exclusively for members and the activities are not primarily for gain. This project fails both of those criteria and it is incumbent on the town to revisit that because in this particular case and a project comes before the Board and they look at the compliance with the zoning they are looking at the activity. If its retail they are looking at the retail activity, if it is residential they are looking at the residential activity. In this particular case, the activity is not relevant to the zoning; rather it’s the type of organization that is occupying it. A membership club is a specific type of an organization. The activity is a fairly unique and perhaps the reason why the Town did not see fit to renew it is not pertinent to the zoning. In this case, the critical criteria are not primarily for gain or profit. That criteria changes depending on the proportions of the activities. This case represents a very substantial expansion of commercial activity on the site. The question of whether it is primarily for gain based on the 2011 application could not have been decided in 2003 or 2004 or even in 2010 because there have been substantial changes since 2010, one of which in a very, very new EAF- he believed it was done on the same day that the Board made its Negative Declaration, was that the peak traffic on the site was now up to 36 vehicles per hour up from 26. The 26 was done as recently as this summer. He is presuming in his comments that was the number that was looked at last year by the CEO. They have a 40% increase in peak traffic due to the commercial activity. That is just one indication of the commercial activity there are many others- events, overnight guests, the entire thing has changed and it is incumbent on the Town at this time to determine if this activity is still not primarily for profit. He would submit to the Board that it is obvious that at this time this activity is primarily for profit. He would suggest that the Board make that determination or refer it back to the CEO for that determination. This has changed since 2010- it has changed since 3 months ago. One other issue which they brought out, they called the club to determine what role a membership has in their activities. Membership does not have a role in their activities. Not a necessary role anyway. He’s sure you can join and become a member, but you can get the gamut of their services without being a member. In one particular case the person was calling for a series of facials- 16 treatments. He suggests that the Board either make this determination or refer it back to the CEO and they suggest again that in the matter of the site plan and Special Use Permit review that they look very carefully at the events and generation of noise and to make the determination that as proposed right now, it

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simply does not add up. There is simply no ways to have an event for 200 people with amplified music 120’ away from Mr. Feldman’s property and have it comply with the required decibels. Building a fence 6-8’ high will not stop amplified music from traveling from one side to the other side. It doesn’t work that way.

Mr. Cappello wanted to respond to a couple of issues. The first one relates to an issue that seems to be attempted to be re-litigated. Nothing has changed from this application to the next. Mr. Gordon was comparing apples to oranges. He talked about the use, the use, the use and all of a sudden he snuck in a SEQRA issue. The Court clearly determined that the use proposed that was granted an approval for in 2010 was granted 16 special events per year. The applicant reduced that to 12. It had the expansion of the building addressed. They reduced the footprint of the building- slightly, but to address SEQRA concerns. They haven’t asked for one additional item. Under SEQRA they clarified based upon what was proposed in 2010 and what was proposed now. They clarified the number of potential traffic trips. That has nothing to do whether it’s a membership club or its not. You could have 700 trips in an hour—it has nothing to do with the use. All the issues raised in Mr. Gordon’s presentation were raised before the Ulster County Supreme Court who upheld very clearly the Board’s decision. There are some ambiguities in the law. The Board held that in 2003 the membership club is the same and it is expanded and run by the same person. They have proved in 2010 that they haven’t expanded one iota from that previous approval. The Court found that. The Court will not substitute its judgment for the Board in this issue because it has found that it has a rational basis and supported by the evidence in the record. They increased the evidence, they haven’t changed the use that issue was decided by the Court, the Court held that the applicant had to do additional SEQRA and the applicant came in and gave the Board volumes of additional SEQRA work to address that concern. They aren’t revisiting that decision, nor should the Board revisit that decision. The applicant has expended substantial funds to attempt to comply with the Court’s decision. They would ask that Mr. Feldman and his attorney also comply with that Court Decision. If they didn’t agree with that Court decision they could have appealed it to the appellate Court. They chose not to, therefore it’s the law of the case. The law of the case is that this is a membership club. The law of the case is that the 16 events that they proposed in 2010 were upheld by the Court. You can’t re-litigate now; you can’t have a second bite of the apple. That would be unfair to the applicant who has expended a tremendous amount of funds to address all the SEQRA issues fully and completely. The only changes were reduced- the special events as it relates to noise- the changes that they made are that they agreed that any amplified music would be in an enclosed area. There is a maximum that there is going to be 200 people. Anyone who anticipates that there are going to be 200 people at every one of those 12 special events is probably not realistic nor are they claiming that. That is maximum. They never claimed that every single person would be inside the building at every single time. They said that music would be inside. As it relates to the noise ordinance of the Town- Ms. Harari will have to comply with the noise ordinance just as Mr. Feldman would when he does his hammer for his art thing. It has to be at the decibel levels at the property lines and when those hammers are running he would invite the police or anyone else to see if the noise at the property line is 55 decibels whenever he has his special events or fund raisers- profit or not profit- the Town’s noise limits are the noise limits. The applicant will make accommodations to comply with those noise limits and they believe that they will meet that with the accommodations they have made based on the studies they have done and they will comply with that. As it relates to overnight guests the applicant has stated that they are not amending they are asking for what was allowed in 2003. The applicant believes that it allowed

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Is for 2 overnight rooms and it was clearly stated. Ms. Harari was asked a question, she said 2 overnight rooms. They are not expanding there is no part of this project that has asked for an expansion- they have clarified with the CEO as to whether those 2 rooms were available and they believe that that determination stands and they are not asking this Board to expand that. So, what they did ask for and what the Board granted in 2010 the applicant has actually decreased the size, the number of special events they were provided for in response to address those SEQRA concerns. They have also addressed the wetlands issue, which was a chief issue that the Board required to be addressed, they have the permit and they have addressed every single issue that this Board raised and the Negative Declaration was very thorough and complete and in regards to the issue of zoning- any continued allegations that commercial uses aren’t permitted in this zone doesn’t really look at the zoning because there are several commercial uses permitted in the residential zone, including an expansion of non conforming uses. The Board made a decision on the expansion of that non conforming use. That decision was upheld by the Court of law that was required to look at it.

Chairman Baden wanted to clarify 2 points. One of which each side made. The amended EAF was page 5 and was submitted to the Planning Board on September 14^th, which was 12 days prior to the Workshop Meeting and the Town’s consultant in his review had it in his possession and reviewed that document. It was not received on the day that they did the SEQRA. The other point was that in the 2010 decision the Board did make a determination and condition of no overnight guests and he could pull out the exact language if the Board wanted it read back. He wanted to point out that they did make a determination and condition on that. They conditioned the Special Events to 16 as well as times.

Mr. Ullman questioned if the applicant had petitioned to get that part of the Article 78 decision overturned (the PB’s determination on no overnight guests).

Chairman Baden answered no.

Mr. Gordon noted that in respect to the noise again- what Mr. Cappello was suggesting was that the Board go ahead and approve it based on the site plan and as far as compliance down the road the Board should leave it up to the Code Enforcement Office. He would suggest to the Board that as a matter of planning and permitting that that is pretty thin gruel. Part of what modern planning does is to plan to avoid situations where citizens who have a conflict with each other and situations that are rightly to produce citizens being in conflict with the law. The idea isn’t to go ahead and permit something and keep your fingers crossed and hope everyone complies. This is a case where it is going to happen. If this were permitted as it is proposed you would see noise meters and arguments and yes the police would come and they would bring their noise meters and you’d probably see this on a monthly basis depending on how many events there were particularly in the summer and yes of course some of the people would come outside and that would increase some of the friction. This is as clear as day and they can easily see it coming. The chance of 200 people in a building like this- you probably couldn’t put 100 people in a building like this and a band. They ask the Board again to use their discretion and judgment and their common sense. They didn’t want to have a battle over noise. In regards to zoning, Mr. Cappello overstated the Court’s decision. The Court indeed upheld this Board’s determination to allow the expansion of a non conforming use and they do not contest that.

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The non-conforming use of a membership club can expand on this site assuming that this Board decides to do this. They did it the last time if they did it again it would be allowed. The issue that they are raising was not determined by the Court- the Court specifically declined to determine it and that is the question as to if this is a membership club. For the reasons stated before and the reasons he put in the letter, this is no longer a membership club. It was no longer not primarily for profit and it is no longer even attempted. It can be determined by the Board or the Code Enforcement Officer.

John Cappello wanted to clarify two things. He read the language of the Court verbatim. The Court said that the Board did declare that it was a membership club the Board did all of the conditions and it was in there. It was denied by the Court and the Court said it would not substitute its judgment for the Board on this issue because it finds that it has a rational basis and is supported by evidence in the record. In regards to the noise issue what he said was that they have mitigated by enclosing the meditation pavilion- it wasn’t enclosed in the first round. Amplified music would happen and they included an analysis on the noise by their engineer. All they had from Mr. Feldman is that “you know it would be louder”- you don’t know. There is nothing in the record that shows it will be louder. The music will be in an enclosed pavilion. They put up fencing they put up trees and they gave an analysis versus conjecture.

Chairman Baden wanted to point out that the Town does not have a noise ordinance. There was a section in the Zoning Code that addressed noise in terms of “wherever new commercial, new industrial, or new multifamily residential uses with the exception of agricultural activities and home occupations are proposed.”- Section 140-20F. It specifically references the DEC’s Assessing and Mitigating Noise Impact Document. There is not a noise ordinance in the Town of Rochester. He wanted to make sure that there was no misunderstanding.

Mr. Ricks wanted to point out that the proposed pavilion would be likely air conditioned.

Mr. Medenbach answered yes- by law it would have to be.

Chairman Baden noted that they weren’t even going to attempt to figure out the maximum occupancy of the pavilion- that would be a Code Enforcement issue.

The Reverend Dr. Simone Harari noted that she has been in front of the Board for 2 years now and she has done everything that she has been able to do to address Mr. Feldman’s concerns. To responsibly handle whatever issues the Board has brought forward to her, which she thinks is excellent that they have been so thorough in everything they’ve had to do. She felt like at this point – she’s asked Mr. Feldman repeatedly if there was anything more they could do that would make him happy about this. She felt like this could keep going on and they could continue this or its time to move on. They’ve all spent a lot of time and money and in terms of noise and everything she believes that the record shows that she has acted responsibly in terms of bringing this project forward and she sees this as something that they are bringing into the community for jobs and the tax rating for everything else and her pledge and commitment is to continue to act responsibly. She didn’t feel that there was really anything more to be said about this.

CONTINUED APPLICATION, SEQR REVIEW, AND CONTINUED PUBLIC HEARING

Chairman Baden asked if anyone on the Board had any further questions.

Mr. Ricks motioned to close the Public Hearing. Seconded by Mr. Ullman. No discussion.

Vote:

Baden: Yes Tapper: Yes

O’Donnell: Yes Rominger: Yes

Ullman: Yes Ricks: Yes

Smith: Absent

Motion carried. 6 ayes, 0 nays, 1 absent

Mr. Ricks noted that maybe they should all sit with the Town Attorney and go through the letter that the Chairman had written to the Town Attorney and get the questions answered all together and come upon some kind of a consensus so the decision could be written.

Mr. Ullman questioned Mrs. Christiana what they needed to actually decide on this application. Did they need to actually decide on the issue that has been raised about whether this is truly a membership club?

Town Attorney, Mary Lou Christiana, noted that was decided by the Code Enforcement Officer in referring this to the Board. She had to agree with Mr. Cappello in the Court’s decision it said that that Mr. Feldman should have challenged the determination when it was made. The Court has said that.

Mr. Ullman questioned if there was still a question about the overnight guests. Was that a part of the conditions or was that something that was also part of what they had already decided.

Mrs. Christiana noted that if the Board felt because they had to re-open the Public Hearing, they must have a balance SEQRA Determination before they could approve a project. The Court said, well, your approval was okay- you had valid evidence in front of you and you made a valid determination- however that can’t stand because their SEQRA was not valid. So, that’s why the Board had to re-open the Public Hearing. She felt at this point that if the Board feels that any evidence has come before them that has really convinced them to change something, that they could make a change, but if the Board didn’t feel that they did have any new evidence that was swaying them to make a new determination- they certainly don’t need to.

Mr. Ullman questioned the no overnight guests condition—that was in the original decision?

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Chairman Baden read the condition from the 2010 decision as follows:

Only members and their guests may use the services of the membership club spa.
There shall be no overnight accommodations provided to members or their guests associated with this use.
There shall be a maximum of 16 special events per calendar year to be held in the outdoor pavilion with a maximum of 200 people per event (e.g. Weddings, birthdays, barmitzvahs, etc) not inclusive of normal spa activities (eg. Meditation, workshops, trainings, etc). Event hours shall be limited to between 9:00 am and 11:00 pm. Ulster County Health Dept. permits shall be obtained when required.

Chairman Baden stated B he had written a draft decision for the Board to review over the last couple of days based on all of the comments received by the Board and based on the previous decision. It was strictly a draft to begin their conversations. He then asked the applicant to return to the audience and further noted that he would not be accepting any discussion or comments from the applicant during the review. This was the Board’s time to discuss the application.

TOWN OF ROCHESTER PLANNING BOARD

Oct. 11, 2011

DRAFT Decision: PB 2010-04aSUP

Special Use Permit-Conditional Final Approval

For the expansion of a non-conforming use membership club pursuant to the Schedule of Zoning Uses in the Code of the Town of Rochester.

Applicant: Real Escapes Property, LLC, c/o Simone Harari, Body of Truth Spa

Reason for Request:

Special Use Permit as per 140-42 of the Town of Rochester Code for the expansion of a non-conforming use membership club to include expansion of the parking area, additions to the main house and office, expansion of the pond and landscaping, new construction of a gym/fitness barn, meditation pavilion, and sauna building, additions of two septic systems and a well, and removal of the garage structure,

Location: 85 Kyserike Rd. Zoning District: ‘AR-3’

Tax Map#: 69.4-2-2 Total Acreage: +/-20.5 acres

Zoning Permit filed: 5/6/2010 EAF filed: Initial: 6/2/10, Final: 9/14/11

Planning Board Application #: 10-04SBD SEQR Type: Type 1 – 9/13/11

PB Application filed: 6/2/2010 SEQR Determine: Negative Declaration – 9/26/11

Involved Agencies: NYS Dept. of Environmental Conservation

NYS Office of Parks, Recreation, and Historic Preservation

Ulster County Dept. of Public Works

Ulster County Health Dept.

Ulster County Development Corporation

Ulster County Industrial Development Agency

Interested Agencies: Accord Fire District

T/ Rochester Historic Preservation Commission

Agency Referrals: Ulster County Planning Board

DRAFT Decision: PB 2010-04aSUP

Special Use Permit-Conditional Final Approval

For the expansion of a non-conforming use membership club pursuant to the Schedule of Zoning Uses in the Code of the Town of Rochester.

Applicant: Real Escapes Property, LLC, c/o Simone Harari, Body of Truth Spa:

Notice of Public Hearings:

Published in the August 12, 2010 and July 7, 2011 editions of the Shawangunk Journal, notice by mail to known adjacent landowners, and posted on the Town Clerk’s office bulletin board and the Town website.

Date of Public Hearings: 8/17/10, 9/21/10, 7/12/11, 9/13/11, and 10/11/11

Place: Town Hall, Accord, NY

Public Comment: (see Minutes of Town of Rochester Planning Board, dates as noted)

Documents considered by the Planning Board for review:

At this time Chairman Baden recommended that members read through the list of documents to consider as it was a lengthy list.

Mr. Ullman noted that it was going to take a long time to read all of this.

Chairman Baden noted that they were going to read all of the facts established because he wanted to make sure everyone agreed with those. He went through the files with the Secretary pretty extensively and he believes that they went through every document that was received. These were submissions to the Planning Board. He noted that the following were the facts established as he had interpreted them based on the minutes and the Board’s conversations. If there were anything that was disagreed with and amended he urged the Board to stop him and they would look at it and correct it. Unless he heard a comment he would just read through the following:

* * * *

Facts Established by the Planning Board:

The application was determined by the Code Enforcement Officer as an expansion of a non-conforming use requiring a Special Use Permit and was referred to the Planning Board for review on 5/6/2010.
The parcel currently operates under a Special Use Permit for a Membership Club granted with decision #PB 2003-12SUP dated 1/20/04.
The Town of Rochester Code, Chapter 140- Zoning, was amended in Sept. 2009. The definition of “Club Membership” was removed at that time. The Planning Board must review this application using the former definition that existed at the time of the 2004 approval.
Prior to the 2004 Special Use Permit, the parcel was granted a Home Occupation Permit #03/005 to Simone Harari by the Code Enforcement Office dated 1/15/03 to provide “Professional Counseling, Spa (Massage and Facials), and Acupuncture Services”.
The applicant proposes the expansion of a non-conforming use membership club to include expansion of parking area; additions to main house and office; expansion of pond and landscaping; new construction of a gym/fitness barn, meditation pavilion, and sauna building; additions of septic systems and well; and removal of garage structure.
The project expansion meets the development standards of the Town of Rochester Code Chapter 140, Zoning, however the use is not a listed use in the AR-3 zoning district.
The parcel location is 85 Kyserike Road also known as County Route 6, Tax Map#:69.4-2-2, and in the ‘AR-3’ zoning district. County Route 6 is under the jurisdiction of the Ulster County Dept. of Public Works.
Real Escapes Property, LLC, c/o Simone Harari, owns the parcel. It is known as the Body of Truth Spa.

The parcel size is +/-20.5 acres, of which +/-3.5 acres are currently developed. +/-2.0 acres are proposed to be further developed with the expansion.
The applicant seeks to expand the main building from 4 to 7 rooms and to restore the kitchen area that was removed previously due to mold issues.
A small structural addition is proposed to the office building.
The sauna will be built “into the landscaping”.
The gym/fitness center will be constructed to resemble a barn.
The outdoor pavilion, originally proposed as open-sided, will be enclosed for noise mitigation.
The driveway entrance will be relocated.
The parking area will be expanded from 13 spaces to 46 spaces.
The parcel is located across the street from the Rondout Valley school district complex.
The application was referred to the Ulster County Planning Board for review with a reply of a “Required Modification” requiring a re-submittal to the UCPB. After project changes, the application was re-submitted and a reply of “No County Impact” reply was received.
The parcel contains area mapped in the M-20 (Class III) NYS Wetland. A NYSDEC agent has visited the site and verified the delineation of the wetland area. The applicant also proposes pond expansion and dredging. A Freshwater Wetlands Permit from the NYSDEC will be required for the proposed work in the wetlands and adjacent area. NYSDEC has indicated, upon plan revisions, there will be no significant impacts to the wetlands.
A Stormwater Pollution Prevention Plan (SWPPP) has been prepared and approved and will be monitored by the NYSDEC. Stormwater runoff will be addressed by the use of rain gardens.
The main building on the parcel is the Sahler Stone House, a historic stone house listed on the National Register of Historic Places in 1999. The NYS Office of Parks, Recreation, and Historic Preservation is the advisory state agency with the expertise and responsibility for properties on this list. OPRHP originally indicated the structural additions would have a significant impact on the historic property. The applicant, working with the OPRHP office, has proposed change to the structural additions and OPRHP now states there will be no significant impacts to the historical property.
The additions to the main building will be covered with clapboard siding. The connections between the existing structure and the additions will be a glass “hyphen” type of construction.
Ulster County Health Dept. approval will be required for the two new septic areas and the upgrade to the water system.
Ulster County Dept. of Public Works requires the construction of a new entrance and the closing of the existing West entrance. The existing entrance will remain usable as an emergency access, but will be gated.
The Planning Board granted a waiver request by the applicant to vary the requirements of T/ Rochester Chapter 140-17 requiring a 25′ width for parking lot entrance. The applicant will construct to a width of 18′. The Accord Fire District has approved.
The Planning Board has determined the neighboring parcel to the East of the proposed development owned by Mr. Feldman has no legal easement over the application parcel. The neighboring parcel also has been determined to have at least the minimum 50’ of legal road frontage on Kyserike Road. The Planning Board takes no position and offers no opinion regarding the question of access to the neighboring parcel as it finds the question not to be germane to the application presented.
The Planning Board will require the additional planting of evergreen trees to screen Kyserike Road from the parking area.
The applicant proposes the construction of a fence between the property and the neighbor to aid in noise mitigation.
The applicant takes the position overnight guests were part of the original application and are part of the existing approval. The Planning Board, upon review of the 2004 application and approval and the minutes of meetings, takes the opinion overnight guests were not a part of the application and not a part of the approval. The Planning Board further finds this use to not be a “regularly occurring use” associated with a membership club, but more a use associated with a hotel or Bed and Breakfast facility. Overnight guests will be restricted as indicated in the conditions of approval.

DRAFT Decision: PB 2010-04aSUP

Special Use Permit-Conditional Final Approval

For the expansion of a non-conforming use membership club pursuant to the Schedule of Zoning Uses in the Code of the Town of Rochester.

Applicant: Real Escapes Property, LLC, c/o Simone Harari, Body of Truth Spa:

Mr. Ullman questioned fact #1- for the initial application and determination by the CEO. Did he specify that the non conforming use was a membership club or was it just a non conforming use? If he specified it maybe they could just put that in?

The Chairman reviewed the 2010 Zoning Classification Permit. The CEO checked it off that a Special Use Permit was needed under 140-42 which is a non conforming use. He does not actually issue a determination- but the approval was for a membership club in 2004.

Mr. O’Donnell noted that he issued a letter saying that he couldn’t determine what was done because he wasn’t the Code Enforcement Officer at that time who made that original determination.

Chairman Baden noted that was over the overnight guests.

Mr. Ullman thought #1 was fine.

Mr. Tapper wondered if some of this stuff that the Chairman had in here was really facts established.

Chairman Baden noted that this is information that the Planning Board has determined based on their discussions. The applicant is not proposing parking other than the parking lot.

Mr. Ricks noted that they discussed bussing at the last meeting?

Chairman Baden noted that it is addressed under the conditions.

The Board continued to review the Facts Established as follows:

The applicant proposes to hold 12 special events per year in the meditation pavilion. The Planning Board finds this use to be a normal use associated with a membership club. Parking will be restricted to no parking on a public road right-of-way and in Site Plan designated spaces only. Twelve events per calendar year with specific restrictions as indicated in the conditions of approval will be allowed with this decision.
The Planning Board conducted a review of the application under the guidelines of the State Environmental Quality Review (SEQRA) of the Environmental Conservation Law and issued a Negative Declaration on 9/26/11. An Environmental Assessment Form Part 2 and Part 3 has been prepared, considered, and approved by the Planning Board and is filed with the Planning Board, Town Clerk, and Town Supervisor. Copies have been circulated to all Involved and Interested agencies.
The Attorney for the Town advises The Planning Board must look to its approved decision #PB 2010-04SUP granting Special Use Permit for a Membership Club dated 10/26/10 regarding conditions of approval. Although the applicant has caused some changes to be made to the Site Plan, the Planning Board notes this application has not been substantially modified and decision #PB 2010-04SUP granting Special Use Permit for a Membership Club was upheld under an Article 78 proceeding in New York State Supreme Court. The Planning Board further notes these Site Plan modifications have been substantially the result of the SEQRA review of environmental significance of the project.

DRAFT Decision: PB 2010-04aSUP

Special Use Permit-Conditional Final Approval

For the expansion of a non-conforming use membership club pursuant to the Schedule of Zoning Uses in the Code of the Town of Rochester.

Applicant: Real Escapes Property, LLC, c/o Simone Harari, Body of Truth Spa:

Mr. Ullman didn’t understand the first sentence of #32. He wasn’t sure what was meant by “look to” that was very vague. ‘Can be guided by’ or ‘can adhere to’ might be better.

Town Attorney, Mary Lou Christiana, noted that maybe it should say, ‘should be guided by’ and she also recommended that ‘unless there has been some new evidence’

Chairman Baden noted that #32 would be modified to reflect this.

* * * *

Chairman Baden noted that he would read the resolution and conditions of approval and they can then discuss them.

Mr. Ricks felt that they should go through it and make changes as needed.

RESOLVED,

The Town of Rochester Planning Board grants Special Use Permit-Conditional Final Approval to Real Escapes Property, LLC permitting the expansion of a pre-existing, non-conforming use membership club as per 140-42 of the Town of Rochester Code at 85 Kyserike Rd., Tax Map #69.4-2-2, and in an ‘AR-3’ Zoning District of the T/ Rochester with the following conditions of approval.

This Special Use Permit-Conditional Final Approval shall expire one year from this approval date unless conditions #1- #6 are satisfied by the applicant and certified as complete by the Chairman. The T/ Rochester Planning Board may extend this period upon application to and resolution.

Special Use Permit-Final Approval shall be considered at a scheduled public meeting by the Planning Board and determined by majority resolution upon application and submitted proof of satisfactory completion of conditions #1- #6 by the applicant to the Planning Board.

Conditions #7- #25 of this decision shall be retained as conditions of the Final Approval. The Planning Board reserves the right to impose additional conditions of approval, as may determined to be required, by majority resolution upon Final Approval review.

DRAFT Decision: PB 2010-04aSUP

Special Use Permit-Conditional Final Approval

For the expansion of a non-conforming use membership club pursuant to the Schedule of Zoning Uses in the Code of the Town of Rochester.

Applicant: Real Escapes Property, LLC, c/o Simone Harari, Body of Truth Spa:

CONDITIONS of APPROVAL:

Conditions Required to be Completed Prior to Final Approval Consideration:

Applicant shall secure the following specific permits prior to construction and all conditions of these permits shall be made a part of this Special Use Permit approval.

NYSDEC Freshwater Wetlands permit
Ulster County Health Dept. septic and public water supply permits
Ulster County Dept. of Public Works driveway permit

Should any condition(s) imposed by these permit approvals cause a conflict to occur, the more restrictive condition(s) shall prevail.
Should any permit approvals cause a change to the approved Site Plan, the matter shall be referred back to the Planning Board for action.
One copy of each approved permit shall be filed with the T/ Rochester Planning Board.

Prior to Final Approval, the Site Plan shall be revised as follows:

GPS reference data shall be included for storm water outfalls and permanent storm water handling structures as per 140-46Q of the Town of Rochester Zoning Code.
The proposed six-foot fence shall be removed from the freshwater wetland adjacent buffer area.

Applicant shall provide the Planning Board with a complete set of ground plan and exterior construction drawings of the proposed structural additions and new structures.
Prior to Final Approval, should the applicant desire to complete the development in phases, a detailed phasing plan shall be submitted to the Planning Board indicating which aspects of the development will occur within which phase. The Planning Board shall review the plan and issue a recommendation to the Town Board as described in §140-56 of the Town of Rochester Code regarding bonding and the amount of performance security to establish.
The Planning Board further finds these proposed infrastructure improvements to be imperative to the health, safety, and welfare of the community and requires these improvements to be completed in entirety prior to the issuance of a Certificate of Occupancy associated with this Special Use.

Relocation of Driveway
Parking area expansion and associated landscaping/screening
Storm water treatment facilities
New septic areas and well
Site lighting
Relocation of existing and additional signage

Any and all fees due to the Town of Rochester involving this application shall be paid in full prior to the Chairman’s signature on the Final Site Plan.

Conditions of Approval to be Retained with Final Approval:

The Site Plan approval associated with Special Use Permit Approval shall be binding on the applicant or their successors and shall remain effective, as an authorization to expand the use, for a maximum of one year from the date of Final Approval. This approval may be extended upon applicant written request and the Planning Board granting, by majority resolution, an extension in writing pursuant to section 140-52 of the Town of Rochester Zoning Code.
All Local, County, State, and Federal Laws or Codes shall be complied with during the development, construction, and operation of the approved use.
The Code Enforcement Officer shall determine the maximum occupancy allowed for each structure and membership club operator shall be post this notice visibly onsite.

Chairman Baden noted that he put this in to replace the previously approved 200 max capacity.

His feeling on this is that the Board is not the CEO, they don’t know how many people these structures will hold, it’s his job, let’s leave it to him.

Mr. Ricks thought that there will be things in the pavilion like maybe a kitchen that will reduce the floor space.

Mr. O’Donnell noted that having a CEO certificate and having taken all of the classes those things are all addressed as part of that. The Code sets the maximum number of people. You can’t go any less than the code- if the State Code says 5 people you can’t say 4 people.

Chairman Baden wasn’t comfortable saying how many people.

Mr. Tapper noted that they weren’t saying what the occupancy should be of any particular building.

Mr. Ullman noted that what Mr. Tapper was raising were 2 separate issues. One is how many people can fit in the building the second is how many people would they allow?

Mr. Tapper felt that he had no problem with the condition, each building should have a maximum occupancy, but the Chairman’s rationale to compare it to exchange it for the 200 people- really one has nothing to do with the other.

Chairman Baden was trying to say that when he gets to the last condition it would explain it more if the Board could bear with him. He apologized, it should have been in better sequence, but he tried to put all of the Code Enforcement stuff in one place.

The Board continued to review the draft decision

There shall be no deviation from the approved Site Plan bearing the Chairman’s signature except as may be permitted pursuant to 140-52 of the Town of Rochester Zoning Code.
All existing conditions and improvements identified on the Site Plan bearing the Chairman’s signature including but not limited to structures, roadways, parking, pond and wetlands sitework, grading, landscaping, lighting, stormwater, water, sewer, and signage, shall be completed or bonded with a performance security established as described in §140-56 of the Town of Rochester Code prior to the issuance of a Certificate of Occupancy by the Code Enforcement Officer.
There shall be no parking allowed in any public road right-of-way. Onsite parking shall be in approved Site Plan designated parking spaces only.
All landscaping, as identified on the Site Plan to be retained or added, shall be maintained and replaced if dead or diseased with like kind plantings.
Landscaping addition of evergreen trees along the parking area shall be a minimum of 6’ at planting. They shall be required to be planted prior to the issuance of a Certificate of Occupancy.
The additions to the Sahler Stone House shall be built strictly to the specifications agreed to by the NY State Office of Parks, Recreation, and Historic Preservation with no deviations. The Code Enforcement Officer shall monitor this construction for strict compliance and adherence to the approved building plans.

Mr. O’Donnell had some questions on this. If the for some reason they realize that there is a structural problem with this building, they may want to deviate- are they blocking it by this condition. They don’t know what they are going to run into.

Town Attorney, Mary Lou Christiana noted that OPRHP doesn’t have an approval.

Chairman Baden noted that they are an advisory agency. He had originally had that in there and Mrs. Christiana recommended taking it out because they are an advisory agency, not a regulatory agency. However, his feeling is that they agreed that it wasn’t a significant impact once those changes were made.

Mr. O’Donnell was worried that once they got into construction and they found something in this old building that suddenly they had to address and now the Board was telling them that they couldn’t deviate. They might have no choice.

Mrs. Christiana noted that they didn’t approve the structural.

Mr. O’Donnell was worried they were putting a block on this.

Chairman Baden questioned if they re-worded it to the ‘approved exterior plans’ because all they care about is essentially how it’s seen from the outside.

Mrs. Christiana noted that would just be the site plan.

Chairman Baden noted that the site plan just shows the space. It doesn’t show that this is a glass structure. It just shows an exterior footprint. It could be anything beyond that. More of his concern was that the exterior that was agreed on. The PB didn’t care about the interior. That’s why he thinks it would be okay if they added approved exterior building plans it would address it.

Mrs. Christiana had thought that the architect for the project had presented these plans? Why didn’t they incorporate that?

Chairman Baden noted that the architect submitted a new exterior plan, but primarily it was a discussion on the phone between the applicant and the OPRHP. He just submitted the new layout. They could reference that- the approved building plans received dated September 14, 2011. Was everyone okay with that?

There was no disagreement.

The Board continued to review the draft decision

16. The meditation pavilion and privacy fence construction shall be completed in entirety (i.e. the pavilion must be completely sided and enclosed) prior to the issuance of a Certificate of Occupancy and any use of the meditation pavilion.

Mr. Ullman wanted to point out that in the parenthetical the ‘i.e.’ should be ‘e.g.’. Should they not be specifying the material of the fence and the type? Just referring to a privacy fence doesn’t really say anything.

Chairman Baden noted that they already established in the FACTS that it was a 6’ fence.

Mrs. Christiana noted that being said, it could be a 6’ high chain linked fence.

Chairman Baden noted they could change it to a 6’ high solid fence.

Mr. Ricks noted that the other thing is it says, ‘completed to its entirety’ and the plan shows it going all the way to the wetland, but they discussed ending it before then.

Chairman Baden noted that the condition was to remove it – condition #2.

Mr. Ricks questioned if because this conflicts with the site plan, they didn’t want to reword it?

Chairman Baden noted that they already did, ‘prior to final approval the site plan shall be revised to remove it from the buffer’ . They would reword condition #16 to reflect a 6’ high solid fence.

The Board continued to review the draft decision

Pond and wetland construction and related site work shall be conducted in the manner as detailed on the Site Plan and in accordance with all NYSDEC permits and regulations.
As per Town of Rochester Code Chapter 140, all storm water management improvements shall be properly maintained so as to continue to perform in their intended manner. Sediment shall, at a minimum, be removed from sediment traps or sediment ponds whenever their design capacity has been reduced by 50%.
The public roadway access shall be constructed in the location and to the specifications indicated as per the UC Dept. of Public Works approved driveway permit. Approved site distances along Kyserike Road shall be maintained with the cutting of brush and tree limbs along the roadway.
Applicant shall retain the existing West access for the purposes of emergency access. Public access shall be restricted with a security gate constructed as approved by the UC Dept, of Public Works and the Accord Fire District. The West emergency access is to be maintained and remain in safe, passable condition year-round in a condition capable of supporting emergency vehicles.
A directional ground sign shall be positioned at the intersection of the main driveway and the East existing driveway accessing the neighboring property. This sign shall not exceed 4 sq. ft. in total dimension and shall be labelled, Private Drive-No Entrance.
The use of the services provided by the Body of Truth membership club shall be restricted and exclusive to members and their guests only. All guests must be accompanied by the member when using the facility. An information notice shall be posted conspicuously at the entrance to all member welcome areas throughout the membership club facility indicating this.

Mr. Tapper didn’t understand this.

Chairman Baden noted that they were saying that the applicant needed to post that this was a membership club only and will be enforceable by the CEO because they put this in the conditions. If it is operating as a membership club then it is to only be open to members.

Mr. Tapper questioned what a ‘member welcome area’?

Chairman Baden noted that it would be the entry areas where people enter the building. They could word it anyway they wanted. Usually there is a front desk of some sort.

Mr. Ullman questioned why they felt the need to do that?

Chairman Baden stated that his feeling was-

Mr. O’Donnell noted that they didn’t do this in the past- why were they doing it now?

Mr. Ullman noted that if something is approved as a restaurant they didn’t have to put up big signs saying, ‘this is a restaurant’.

Chairman Baden put it in because the question has been raised a number of times and because of asking for the signage to be included which would not be required in any other way, other than the Board making it a requirement—

Mr. Ullman understood, but felt that it was really an enforcement issue.

Chairman Baden was open to delete it.

Mr. Ricks thought it was a good idea for the applicant to do it.

Mr. O’Donnell stated that now the Board was telling her she needed to have this light on on a Tuesday and this light on on a Wednesday.

Chairman Baden disagreed with Mr. O’Donnell. They were basically saying that this was what it was defined as.

Mr. Ullman wasn’t sure what the rationale was.

Mr. Ricks thought it was good.

Mr. Tapper thought it was imposing too much on the applicant’s ability to govern her own business.

Chairman Baden wanted to go around the table to see who wanted it and who didn’t.

Mr. Ullman was more comfortable with how they did it the last time- where they just said it- only members were welcome.

Chairman Baden noted that they could change the language to that if they wanted.

Mr. Ullman would end condition #22 after the first sentence.

Chairman Baden read what they used in the previous decision and the Board could substitute it with that if they wanted. ‘Only members and their guests may use the services of the membership club spa’. Would the Board prefer that language?

Mr. Ullman thought that it seemed less intrusive.

Mr. O’Donnell noted that it was less intrusive, but the other thing was how were they going to enforce it? Were they going to send the building inspector in there?

Chairman Baden noted that the Board wasn’t going to enforce it. By putting it in a condition, it gives the CEO the capability to enforce it.

Mr. O’Donnell didn’t want the condition at all. Mr. Tapper didn’t want to use any language. Mr. Ricks thought the condition was fine or just use the first sentence. Chairman Baden went along with the consensus and crossed out this condition and went with the old language for #22 and replaced with existing condition #10.

The Board continued to review the draft decision

There shall be no overnight accommodations provided to members or their guests associated with the Special Use Permit.

Mr. Ullman didn’t understand the phrase, ‘associated with the Special Use Permit’. He would just end it after guest. The old language was also a little ambiguous.

Everyone was comfortable with this.

There shall be a maximum of 12 special events per calendar year to be held in the meditation pavilion, not inclusive of normal membership club activities (i.e. (eg) Meditation, yoga, classes, workshops, trainings, etc). Hours for the use of the meditation pavilion shall be restricted to between the hours of 9:00 am and 11:00 pm, with allowable setup hours to be extended to 1 hour prior and 1 hour after. A written logbook of all pavilion use, including membership club activities, shall be maintained by the membership club and available for viewing upon request by Town officials. The operator of the membership club shall be required to notify the Code Enforcement Office of the scheduling of all special events a minimum of three business days prior to each event to verify compliance with the maximum 12 events.

Mr. Ullman had 2 questions. This doesn’t follow what Mr. Tapper said earlier with any restrictions on the number of people.

Chairman Baden noted that would come up in #25.

Mr. Tapper thought it was ridiculous to make the applicant keep a written log book.

Chairman Baden gave a hypothetical. They first said 16 uses and they now are saying that they are only going to do 12. Who is counting that? Unless there is some record of that…

Mr. Ullman noted that every permit that they grant—it’s the same concept. You have to comply with the laws. They don’t make everyone keep a log so that the CEO can check.

Mr. Baden would go with what a majority of the Board wanted.

Mr. O’Donnell didn’t agree with this.

Mr. Ricks thought that they should take out the last 2 sentences.

Mr. Rominger thought that the last sentence should be left and to have the applicant at least notify the CEO when they are going to have special events.

Mr. Tapper wanted to know why they had to notify the CEO at all. Does the Pine Grove notify the CEO?

Chairman Baden noted that the Pine Grove isn’t limited to 12 events.

Mrs. Christiana noted that they do get notification on the race track of every race.

Chairman Baden noted that 40 dates for that are approved every year.

Mr. Tapper noted that they were approving this for 12.

Mrs. Christiana noted that the race track had to let the Town know the dates ahead of time.

Mr. Tapper wanted to know where they stopped.

Chairman Baden didn’t see this as an imposition. He saw it as a phone call to the CEO who puts it in the file and says, okay- there’s #1, there’s #2 out of 12… otherwise how is the CEO supposed to enforce 12? He doesn’t know. He’s not working Saturday and Sunday. He is not going to know when an event happens.

Mr. O’Donnell stated that the CEO doesn’t have the authority to regulate this.

Chairman Baden stated that he does because the Board is restricting it with conditions.

Mr. O’Donnell noted that the CEO can’t go on the property.

Mrs. Christiana noted that the CEO regulates the conditions in PB Decisions.

Mr. Ullman noted that he would take out the log book and leave in notification. He thought that was also useful to the community because if it was a 3 day notice and someone said, gee I don’t want to be around when that happens, they could plan ahead.

Mr. Rominger was okay with that as well.

Mr. Tapper was not okay with it- take out both sentences.

Mr. Ricks agreed with Mr. Tapper.

Mr. O’Donnell agreed with Mr. Tapper and Mr. Ricks.

Chairman Baden’s opinion was to take out the written log book and to leave the second one. They were at a deadlock on this. It was clear that the written log was gone. Essentially the deadlock has to be ruled in favor of the applicant.

Mr. Ricks asked why not just have it worded where the applicant supply the CEO with a schedule of events?

Chairman Baden noted that was essentially what the condition said. They weren’t going to know months in advance what their schedule is.

Mr. Ricks thought that the 3 day thing was the downfall.

Chairman Baden thought that 3 days was pretty reasonable. If they were a facility and they should know that they were going to have an event 3 days in advance.

Mr. Ricks thought that every other month they could call in and give a rundown of their events.

Mr. O’Donnell questioned if it could say, ‘upon request prove the number of events per year’.

Chairman Baden noted that if they were going to approve a number they needed to have a tracking facility.

Mr. Ullman noted that the notification was a good thing.

Chairman Baden felt that if they were putting a number on it in any form without some sort of oversight then they shouldn’t even put a number on it.

Mr. Ullman thought that their should be some way to come up with notification.

Mr. Ricks agreed with what Mr. O’Donnell wanted.

Mr. Tapper noted that she would have a record of her events anyway.

Mr. O’Donnell agreed and noted that if it got to that point. He was sure if they threw over 12 events that they would be made aware.

Chairman Baden was just trying to make the 12 enforceable in some way. Otherwise if they don’t make some sort of record…

Mr. O’Donnell noted that if the CEO receives a complaint, he needs to investigate the complaint- he would investigate the complaint by going to the applicant saying prove to me how many events you have had. The PB is telling her how to keep her records.

Mr. Ullman noted that Mr. O’Donnell is saying that the applicant will maintain records sufficient to show the number events.

Chairman Baden noted that they all said that the log book should come out.

Mr. O’Donnell noted that if the applicant shows the receipts that she had an event on whatever days that should be enough.

Mr. Ullman noted that as long as the applicant maintains records to show the number of events.

Chairman Baden requested the Board to give him the language they wanted. ‘the operator of the membership club shall be required to maintain a record sufficient to show…’

Mr. Tapper didn’t like this- Then they were requiring her to keep something.

Mr. Ullman disagreed.

Chairman Baden offered the following language, ‘the operator of the membership club shall be required to maintain sufficient proof…’

Town Attorney, Mary Lou Christiana, noted that if she had 13 events- that would be a CEO issue to prove.

That was why Chairman Baden wanted to just make it just a notification ahead of time.

Mr. Ullman felt it was very minimal to maintain records sufficient to show the number of events that have taken place over any calendar year. ‘records sufficient to show the number of events that have taken place over a calendar year.’

Chairman Baden liked this language.

Mrs. Christiana noted that if the applicant has 13 events, she was betting they were going to hear from Mr. Feldman.

Chairman Baden noted that they weren’t writing the law for 1 neighbor.

Mrs. Christiana noted that as an example- if someone reports something to the CEO, then he has to prove- so the Board is saying to the applicant she has to prove something, but if the CEO takes the applicant to Court, she would have to prove that anyway.

Chairman Baden questioned if the Town Attorney was saying that they didn’t need anything at all that if there was a complaint and the CEO follows it up… His concern was that if there was a complaint and the CEO follows it up and he just says that there is no way to determine this- the Chairman is just trying to make a way for the CEO to be able to determine it. That was his goal. Otherwise it was just going to come out with no comment.

Mrs. Christiana noted that if they were just trying to find a way to keep track of it she would say to just go along with that last sentence and give the 3 days notice.

Chairman Baden would even just say, prior to each event. To him picking up the phone and calling the CEO 3 days before is not a hardship.

Mr. Tapper noted that whatever the majority is going to rule, they are going to rule, but he was against anything after, ‘a written log book’. So was Mr. O’Donnell.

Chairman Baden questioned if they were okay with the written log book then?

Mr. Tapper noted that he was against anything after the starting of the written log book sentence. The majority is going to rule.

Mrs. Christiana noted that if it comes down to when they pass a resolution, they need a majority for it to pass, so they should rectify this condition before they move on.

Mr. Ricks and Mr. O’Donnell were in favor of taking the last 2 sentences out and if they added anything it would be to just provide documentation of it at best. It is her decision and the CEO.

Mrs. Christiana questioned wouldn’t it be easier for her to just call the CEO then to provide documentation?

Mr. O’Donnell thought that they should just call the CEO and he could tell them what was easier for him since they were putting the burden on him.

Mr. Tapper felt that they were telling him how to enforce this.

Chairman Baden stated that they were not telling him how to enforce this- they were setting a condition to make this number of 12 events to be enforceable. He felt without any sort of follow up on this, it’s not an enforceable number.

Mr. Ullman noted that it may or it may not, he just finds this as minimally intrusive.

Chairman Baden agreed and that was why he was willing to take the log book out.

The Board discussed further language as to what would work.

Chairman Baden noted, ‘applicant shall provide proof of special events if requested by the CEO.’ They would also change the hours of use to indicate special uses.

The Board continued to review the draft conditions.

No additional tents or other portable structures may be added to the site for special events, except portable toilet facilities. All amplified noises shall be restricted to use inside the pavilion, only. All temporary permits, including but not limited to Ulster County Health Dept. permits, shall be obtained when required for events. Parking for events shall be in approved Site Plan designated spaces only.

Chairman Baden’s reasoning here was that if they want to bus people in, the Board didn’t care, but as long as they are not parking anywhere other than designated spaces on the site plan.

Mr. Rick’s question on this was that they may have a wedding or something outside. They may want to have a little gazebo tent or something where they hand out things to people- like one of those little pop up tents. That’s not allowed at all?

Chairman Baden was open for discussion, but his feeling was that they did not show on the site plan anywhere or location for it.

Mr. O’Donnell thought that sometimes they have outside tents and that is actually where the event is.

Mr. Ricks noted that there would be no outdoor music allowed in the tent.

Mr. Ullman noted that if they could legally have the number of people on the grounds and it wouldn’t be in the pavilion with the amplified music—if they could put 200 people in an outdoor tent, and its only there while the special event is on…

Chairman Baden’s concern was that they have not been shown anywhere on the site plan a location of an outdoor area for a special event.

Mr. Ricks was only talking about a 10’ x 10’ pop up tent.

Chairman Baden understood, but they were talking 2 different things here.

Mr. Ricks didn’t think they would need a huge outdoor tent if they had the pavilion.

Mr. Ullman wanted to go back to the question that Mr. Tapper had asked earlier. Because the way that this is written there is no restriction on the number of people at an event and that may be good or that may be bad, but that’s what it is right now.

Chairman Baden took the number out for several reasons. One reason is that parking to some degree is going to dictate the number of people. They are not allowing parking anywhere other than those approved 46 spaces—not on the roads, not on the driveway, not on the grass. The second thinking is that the CEO is going to set the maximum occupancy per facility. If there is an event outside and there are additional people, he didn’t think as long as they were violating parking rules or any of the other rules, he thought the 200 number was very arbitrary. He didn’t think there was any rationale behind it and he didn’t think there was any study on it, so he didn’t think the Board should be setting a number. Short of the Town’s mass gathering laws—

Mr. Ricks thought the Chairman’s rationale was right on what he just said.

Chairman Baden was open to discussion on the tent thing. He was trying to avoid the 40’ x 100’ tent that suddenly pops up.

Mr. Ullman questioned what the concern would be there?

Chairman Baden noted that an event in a 40’ x 100’ tent was going to generate a significant amount of noise.

Mr. Ullman noted that so would an event with 500 people outside.

Mr. O’Donnell noted that even if they had the tent- they wouldn’t be able to have music outside- it would only be allowed in the pavilion. If people from the indoor event decide to go and mingle and talk among the landscape.

Chairman Baden noted that they could remove the first sentence. Mr. Ricks, Mr. O’Donnell, Mr. Tapper, Mr. Rominger, and Mr. Ullman agreed with this. They took the first sentence out.

Chairman Baden was fine with this. He was throwing out ideas as a starting point for conversation. He questioned if there was anything anyone wanted in the decision that was not in there?

Mrs. Christiana had some comments. On #7 she wanted to clarify that she knew what the Chairman meant was that the applicant had 1 year to get moving, but she thought it could also be read to say it was an authorization to expand the use for 1 year and they’d have to come back next year. She thought it should be clarified with different language.

Chairman Baden understood this and the language was revised to ‘expansion of use must be accomplished within 1 year.’ Because the other ways of wording it make it sound like it only has a 1 year permit. He looked to 140-52 as this was where the language came from.

Mr. Ricks motioned to grant approval based on the revised conditions as discussed above. Seconded by Mr. O’Donnell.

Vote:

Baden: Yes Tapper: Yes

O’Donnell: Yes Rominger: Yes

Ullman: Yes Ricks: Yes

Smith: Absent

Motion carried. 6 ayes, 0 nays, 1 absent

PREAPPLICATION CONFERENCE

DANIEL PALMESE– Preapplication Conference for a 2 lot Minor Subdivision of a 7 acre parcel,

579 Samsonville Road, Tax Map #68.1-1-15.110, ‘AR-3’ Zoning District

Mr. Palmese was present on behalf of his presentation. He noted that he had property that he wanted to split into 2 lots and wanted the Board’s opinion.

Chairman Baden noted that this is in the AR-3 District and Mr. Palmese has 7 acres and an ample amount of road frontage, so it is feasible.

Mr. Palmese noted that he also had 1.5 acres that adjoined the 7 acre piece. Should he combine these?

Chairman Baden noted that in the old code he would have to, but it wasn’t required now. If Mr. Palmese added the acreage, he could never split it back off because it is 3 acre zoning. If he left it as is, it is a grandfathered lot and is legal. He should get plans from a surveyor and fill out the application and come back.

OTHER MATTERS:

Mr. O’Donnell motioned to reschedule the November meeting from Tuesday, November 8^th to Wednesday, November 9^th due to Town Offices being closed on the 8^th because of Election Day. Seconded by Mr. Rominger. No discussion. All Members Present in favor.

UCPB ALTERNATE

Chairman Baden noted that Mr. Smith indicated that he would no longer be interested in being the UCPB Alternate. He questioned if any PB members were interested that they should let him know. This position was only required to attend whenever he was not available as the Town’s primary UCPB Member. This only happened a couple of times a year.

UCPB REFERRAL

Chairman Baden noted that Mike Fink owned the quarry land across Granite Road from the Town Hall. He was seeking out ideas as to what to do with the property. This was a good example of a project to refer to the County PB for their guidance where they would bring all involved agencies together at the same time to discuss this. They needed a motion from the Board to do this.

Mr. Rominger motioned to send Mr. Fink to the UCPB, seconded by Mr. O’Donnell. No discussion.

Baden: Yes Tapper: Yes

O’Donnell: Yes Rominger: Yes

Ullman: Yes Ricks: Yes

Smith: Absent

Motion carried. 6 ayes, 0 nays, 1 absent

Chairman Baden noted that there was a similar application coming forward for the Sparrow Hawk B & B property that might benefit from this.

Chairman Baden further noted that he and Mr. Ricks would both be absent for the November Meeting, but Mr. Ricks would be back for the December Meeting. The Chairman would be out of the area and miss the November and December Meetings, but he would still be handling the daily office communications via email with the Secretary.

ADJOURMENT

Mr. O’Donnell motioned to adjourn the meeting. Seconded by Mr. Rominger. No discussion. All members present, in favor.

As there was no further business to discuss Chairman Baden adjourned the meeting at 10:30 pm:

Respectfully submitted,

Rebecca Paddock Stange, Secretary

As accepted November 9, 2011