Planning Board Minutes May 19, 2009

MINUTES OF MAY 19, 2009 REGULAR MEETING of the Town of Rochester PLANNING BOARD, held at the Town Hall, Accord, NY.

Meeting was called to order at 7:00 PM by Chairman Tapper.

PRESENT: ABSENT:

Melvyn I. Tapper, Chairman

Leon Smith

Michael Baden

Anthony Kawalchuck

Malena Callan, Alternate

Anthony Ullman

Robert Rominger

Also present was Town Attorney, Mary Lou Christiana.

Pledge to the Flag.

Chairman Tapper waited until 7:05PM to call the meeting to order as he was waiting for Ms. Hanley & Ms. Ciraulo to show up for their continued application review to construct a pavilion at the Sparrow Hawk B & B.

Chairman Tapper noted that the first applicants did not show up, so he moved on to the next matter of business.

PUBLIC HEARING

DEC Application for the Consolidation of the Mombaccus Excavating and Rochester Center Mines, DEC #: 3-5144-00083-00001, MLR# (30496) pursuant to Section 140-36I.(2)(c) of the Zoning Ordinance of the Town of Rochester.

Chairman Tapper noted that the DEC sent the Planning Board a Notice of Complete Application for the above referenced mining application. Section 140-36I.(2)(c) of the Town’s Zoning Ordinance, the Planning Board has provisions to hold a public hearing on such applications. The DEC’s time frame for comments ends on May 29, 2009. He noted that both mines are owned by Mombaccus Excavating. They are contiguous mines on Rochester Center Road and the applicant seeks to combine them for ease of operation. They have reached the point of “Complete Application” status according to the DEC. They have not yet applied for a Special Use Permit from the Town, but under this section of law, the PB has the right to hold a public hearing regardless. Chairman Tapper read Section 140-36I.(2)(c) of the Town’s Zoning Ordinance for the public:

In addition, upon receipt of a notice from the NYSDEC of an application for a permit to mine in excess of 1,000 tons per year, such notice shall be referred to the Town Planning Board who shall conduct public hearing(s), concurrent with or separate from its special permit proceedings, to make determinations and recommendations to the NYSDEC for incorporation in such mining permit with regard to:

[1] Setbacks from property lines and road rights-of-way;

[2] Barriers designed to restrict access;

[3] Dust control;

[4] Hours of operation; and

[5] Whether mining is prohibited by zoning at the location.

PUBLIC HEARING (cont’d)

Chairman Tapper continued that mining is not prohibited in this area and this is not a question and answer session and if the DEC issues this permit, the applicant still needs to come to the PB for a Special Use Permit and the Board will have a more in depth review and be able to mitigate some areas of concern. He noted that the section of law that was read is what the Board is focusing on gathering information about. If individuals wish to send comments themselves to the DEC there are copies of the Notice of Complete Application issued by the DEC. All of their contact information is available on that paper. Otherwise, the PB is going to take tonight’s comments into consideration and will put together a letter to the DEC. May 29, 2009 is the DEC’s deadline to receive comments. He continued and stated that he saw the person whose application is before the DEC and for which this Public Hearing is being held in the audience. He isn’t asking for a presentation, but if the applicant wanted to make a statement, he would suggest starting there.

Keith Kortright is the President and applicant for Mombaccus Excavating. He noted that his Attorney, Andrew Gilchrist was also present and would be able to give a brief statement better than Mr. Kortright could. They brought maps to display for the public.

Chairman Tapper wasn’t sure he wanted it to be that formal of a presentation- just a brief statement of facts.

Chairman Tapper opened the hearing to the public at 7:15.

First recognized to speak was Mr. Kortright’s Attorney, Andy Gilchrist. Mr. Gilchrist displayed a map of the proposal to the DEC and noted that there are 2 separate mines which are owned by the applicant and they are contiguous. There will be no change in operations. They are just modifying two existing DEC permits to fall under one new permit. One mine is non-conforming and grandfathered in the Town while the other has a Special Use Permit. So, while applying to the DEC to combine the two mines the applicant is requesting to eliminate the existing buffer setback between the two which is +/- 13 acres in between the two mines. Currently there are two separate accesses out to the road. In combining the two mines, they are seeking to eliminate one entrance and use only one entrance out onto Rochester Center Road. They have been required to plant trees and screening from Rochester Center Road as part of the modification. They have also modified the stormwater plan since the middle in between the two existing mines would be removed. It will actually be more effective stormwater control for the whole site. There is a service road down to Fischer Road that was issued a Special Use Permit from this Board several years ago to add a well line. There isn’t a lot of water, so that was added a number of years ago.

Chairman Tapper noted that the Rochester Resident’s Association submitted a letter noting that there was a DEC classified trout stream that ran through the property that wasn’t listed on the application.

Mr. Kortright noted that it was very far down on the property—on the other side of Fischer Road.

Mr. Ricks noted that one of the mines is grandfathered, but the other one has an existing Special Use Permit. This would mean that they’d both need to fall under one Special Use Permit now?

PUBLIC HEARING (cont’d)

Mr. Gilchrist had no comment regarding this. He thought it would still operate as a non-conforming use, but he didn’t want to get into that at this time.

Chairman Tapper recognized David O’Halloran to speak. Mr. O’Halloran noted that he had a letter from his attorney that he has submitted for the record to the Board at this meeting and he himself has written one as well. Mr. O’Halloran noted that he didn’t oppose mining and noted that the mines in this Town were good for economic activity. The ridge that separates these two mines was a natural mitigation measure. He also believed that the DEC needs to give this application a Positive Declaration and not a Negative Declaration. The application fails to mention an historic house on a contiguous property. Also, a neighbor has stated that Mombaccus Excavating has said that they would never mine on the other side of the property next to Fischer Road. With the natural buffer of the ridge gone, there would be nothing stopping Mombaccus from moving their mine even further down. He supports the project, but feels it needs to be a Positive Declaration and looked at more closely.

Danny Sager noted that he lived pretty close to the ridge and his concerns were the noise impacts. During the week he does hear the noise and with the elimination of the ridge and the combination of the mines, he believed it would get even louder. He also felt that this was sure to impact the property values surrounding the mine and make them go down. He felt that he and other neighbors would deserve a reduction in taxes should this happen and he would apply for that.

Mark Owens was next to speak. He also lived close to the ridge and was concerned with the destruction of the historic value of the area.

Ruth Bendelius was also recognized to speak. Mrs. Bendelius read a statement (on file with the PB Office). As an interested person in historic properties, Mrs. Bendelius informed the Board that this property does in fact border an historic property. The Jacob Hornbeck House has been on the National Register since 1997 and is in the view shed of this project. This is a Type 1 Action and because of the historic structure, this should be referred to SHPO (State Historic Preservation Office). She noted that the combination of these mines should show efforts of reclamation. If anyone has ever flown over this area, it looks like a moonscape. She was also in agreement with the immanent devaluation of property with the removal of the ridge. She was concerned with truck traffic and the wear and tear that they would have on the local roads that weren’t built for heavy truck traffic. The DEC has been Lead Agency in the past and they have not properly mitigated these concerns. She was also surprised that there was no one from the DEC present at this meeting. She urged the DEC to be open to community concerns. Region 3 DEC doesn’t always listen.

Rob Kilbert was a property owner on Dunn Farm Road and was concerned with the potential for devalued properties. His property is in an Ag District and the mine property is right up against it. He did believe that the combination of the two mines made sense.

Adrienne Fischer read a statement (on record in the PB Office). She noted that she lived at 286 Rochester Center Road and she was the last house on the steep grade before Samsonville Road. She has lived here since 1989 and the truck traffic is an impact now and will be even greater with the combination of these 2 mines.

PUBLIC HEARING (cont’d)

The noise and dirt have exacerbated her and will continue to do so if something isn’t changed. Her main grievance was about the heavy truck traffic at this part of Rochester Center Road. Because of the steep grade, the trucks often threw on their noisy j brakes right in front of her house to slow down before they got to Samsonville Road. She urged the DEC to look into Queens Highway as an alternate route for these trucks. The Town just spent over 1 million dollars fixing up the Queens Highway/ Rochester Center Road intersection. During the Special Use Permit process for the water line application, Mombaccus was asked if they ever planned on combining the two mines and they replied, “Absolutely Not”. They also have an application in front of the DEC for a Blue Stone Mine on Amanda Drive and that material is going to be shipped to the Rochester Center Road Mine and processed. More truck traffic will be generated from this. She urged the PB to look into mitigation measures and possibly using the Fischer Road Access as an option, but no one down that way would like that either. Things she would specifically like DEC to address would be the change the access and route to Queens Highway. Limit the hours of operation. Fugitive noise and dust to be mitigated. She felt that this action was significant enough to require a Full Environmental Impact Statement. She noted that the DEC is becoming more stringent. Her last point was that her dog was killed because someone driving a truck from the mine couldn’t stop in time because of the steep grade and heavy truck.

Chairman Tapper suggested that if people from the public had letters that they prepared that they could also send them directly to the DEC. Their comments would be incorporated into a letter that the Board would forward on to the DEC.

At 7:45PM Chairman Tapper motioned to close the Public Hearing as there was no further public comment. Mr. Smith seconded the motion. All members present, in favor.

At this time the Board discussed points to be addressed in their letter to the DEC.

Mr. Baden noted that he went through the applicant’s plan and one thing they are going to do is close off one of the entrances. He would like to see that done so by physically closing it off with landscaping it with trees- maybe a berme. He went through Mombaccus’s Special Use Permit and one of the conditions of that permit is to put up a gate at the end of the Fischer Road access. He knows that this has not yet been done. He would request that it be included in the DEC conditions.

Chairman Tapper questioned if they should consider asking the DEC to change the truck route to Queens Highway.

Board Members noted that truck traffic routes are not something that the Board is able to address under this law.

Mr. Ricks wanted the DEC to come up with a way to cut down on dust up and down Rochester Center Road. He noted that some mines are required to wash trucks down on the way out of the mine to cut down on dust and dirt on the roads. Maybe 200’ of blacktop on the way out of the mine and having the trucks washed down would be a way to accomplish this.

PUBLIC HEARING (cont’d)

Mr. Kawalchuk didn’t think 200’ would do it. It really will only come off of the tires after the truck picks up speed, which would be on its way down the road.

Mrs. Christiana noted that the PB’s request to the DEC can be for the DEC to come up with a suitable mitigation measure.

Mr. Ullman questioned the sense of requesting the Fischer Road entrance to be gated if there isn’t a fenced in property line along that area . What would stop somebody from just going around the gate?

Mr. Kawalchuk felt it definitely wouldn’t stop anyone, but it may deter them.

Board members noted that people from the public had valid concerns regarding SEQRA and the trout stream and historic property.

Mrs. Christiana suggested that the Board write two separate letters. One on this law addressing the 5 points allowable and the other one on those items under SEQRA raised by the public.

Mr. Baden noted that he looked into the histories of these mines with the PB Office, Code Enforcement Office, and DEC and found that the Rochester Center Road Mine has had 5 different Special Use Permits granted through the years. It would make sense that amending the DEC Application is going to trigger a Special Use Permit Application, but it looks like the applicant doesn’t see it that way. Special Use Permits are coterminous with DEC permits- so when changing a DEC Application, legally the Special Use Permit would need to be re-applied for as well and technically if it weren’t, they would be in violation and without a Special Use Permit.

At this time the PB discussed the points that they would put in their letter to the DEC.

1. They would support the request from the DEC for phase 2 visual barriers as listed in the DEC letter of September 17, 2008 to Mombaccus Excavating to put in a double row of trees.

2. The access road that is proposed to be closed should be permanently closed with landscaping.

3. Dust mitigation required at mine entrance and in each direction of Rochester Center Road.

4. No comment on hours of operation.

5. Mining is allowed in that area, only with the issuance of a Special Use Permit.

Mr. Ricks motioned for the Chairman to formulate a letter based on the above points as discussed by the PB and also to include the letters and comments from the public. Seconded by Mr. Baden.

Vote:

Tapper, Chairman- Yes Ricks, VC- Yes

Kawalchuk- Yes Smith- Yes

Ullman- Yes Rominger- Yes

Calan(alt.)- not required to participate Baden- Yes

PUBLIC HEARING (cont’d)

Mr. Baden motioned to write a second letter under SEQRA bringing attention to the DEC of the historic parcel contiguous to the parcel in question being applied for by the applicant and the fact that a DEC Class A Trout Stream also runs through the parcel in question. Even though these points are in or near portions of the property that are in non mining areas, they are parts of the application parcel and should be addressed in the SEQRA Determination. Seconded by Mr. Ullman.

Vote:

Tapper, Chairman- Yes Ricks, VC- Yes

Kawalchuk- Yes Smith- Yes

Ullman- Yes Rominger- Yes

Calan(alt.)- not required to participate Baden- Yes

Mr. Ricks motioned to adjourn the meeting. Seconded by Mr. Rominger.

As there was no further business to discuss, at 8:05PM Chairman Tapper motioned to adjourn the meeting.

Respectfully submitted,

Rebecca Paddock Stange, Secretary