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Regular Meeting February 10, 2003 Charlton Town Board Saratoga County New York
After the pledge to the flag the invocation was given by Town Clerk Gail Hanchar.
At the regular meeting of the Town Board of Charlton, Saratoga County, New York held at
Councilman Alan Grattidge
Motion made by Councilman Grattidge, seconded by Councilman Lippiello that the minutes of the January 13, 2003 Town Board Meeting be accepted as received:
Approved: Councilman Grattidge Yes
Motion made by Councilman Grattidge, seconded by Councilman Lippiello that the minutes of the January 27, 2003 Agenda Meeting be accepted as received:
Approved: Councilman Grattidge Yes
ABSTRACT OF CLAI MS:
General Fund: Abstract of Claims totaling $31,594.48. Motion made by Councilman Schroeder, seconded by Councilman Grattidge.
Highway Fund: Abstract of Claims totaling $14,103.83. Motion made by
Water Fund: Abstract of Claims totaling $3,585.24. Motion made by Councilman Schroeder, seconded by Councilman Grattidge.
Vouchers for the month were #83-#178.
TOWN CLERK'S REPORT:
Gail Hanchar read the Town Clerk's Report. She reported taking in $124.66. Motion made by Councilman Schroeder, seconded by Councilman Grattidge. PASSED UNANIMOUSLY.
PRIVILEGE OF THE FLOOR (Agenda Items):
No comments.
SUPERVISOR'S REPORT AND ANNOUNCEMENTS:
January review of expenditures and revenue:
Major expenditures:
Highway Fund - Snow Removal Personal Services of $24,946.53 (Includes overtime) and Contractual Expenditures
General Revenue:
The Town Hall will be closed on Monday, February 17 for President's Day.
COMMUNICATIONS:
We received a thank you note from the Charlton Historical Society thanking us for our annual donation.
Tar and Joyce Riedinger will continue as web master for the Charlton Web Page. They suggest we change our web browser to one that we can do more with. They will do this for $600.00 annually. Over $300.00 is for service for the web browser. We will pass a resolution later in the meeting.
ANIMAL CONTROL:
Lee reported that he has been busy with routine things. There have been changes in the NYS Agriculture and Market Laws for 2003. Dogs can be licensed at an earlier age. There are some new exemptions regarding therapeutic dogs. There will be a mandatory $5.00 additional charge for any dogs licensed during a town enumeration.
ASSESSORS:
Marge reported the reval. process is working well. Residents can make arrangements to speak with the company that did the reval. regarding their notice. Appointments are being made now for the week of February 17. If you are not satisfied with you assessment as a result of your meeting with the reval. company, you may appeal to the Assessors now or to the Assessment Review Board on May 27. After that you may appeal to Saratoga County Small Claims Court. Any exemptions need to be filed by March 1. Marge stated that in the contract with Appraisal Consultants they verbally agreed to give us a printer and a digital camera. The printer was eventually obtained. Marge has been trying to get a camera from them with no success. Councilman Grattidge remembers that specifically being discussed with them. He stated that we need a meeting with them. Councilman Mitchell said we need to have a meeting as soon as possible because there are a limited number of cameras available. Dot will get in touch with them.
ENVIRONMENTAL CONSERVATION COMMISSION:
The Roadside Clean Up will be April 26 from 8:00 A.M. until Noon. From Noon until
HIGHWAY:
They have been keeping up with the weather. There have been no complaints from the residents.
HISTORIAN:
Laura will be meeting with the Historic District tomorrow night.
HISTORIC DISTRICT COMMISSION:
On Wednesday, February 12 at 7:00 P.M., the Commission will be meeting with the Steering Committee finalizing some question regarding the final plan for LandWorks. Soon they will be ready to make a presentation to the Town Board. On Thursday there will be a quarterly meeting with the Capital District Transportation Committee regarding grants. Doris and Dot will attend the meeting.
PARK COMMITTEE:
They held a meeting on February 6. The resurfacing was finished on the tennis courts in Elmer Smith Park but the lines were not put down due to snow. Lines also need to be put down on the basketball court. Two new members have joined the committee - Ellie George and John Ormsbee. The committee is looking for input from residents for new projects to include in the park.
Mill Pond Park and Elmer Smith Park are ideal for snowshoeing and cross-country skiing this year. There was a concern about drainage in the parks. It might be something that needs to be looked at before we do other things.
PLANNING BOARD:
There was no meeting in January due to the weather. They met briefly earlier tonight. They had one subdivision request that will require a variance. That will be turned over to the ZBA.
RECORDS ADVISORY BOARD:
They will be meeting on Wednesday, February 19 at 7:30 P.M. at the town hall.
TOWN HALL COMMITTEE:
Councilman Grattidge has scheduled a meeting with the architect for the town hall on
WATER:
John Morgan and Councilman Lippiello have been working with Jim Mitchell to put together the map for Water District Extension #5 which is the corporation of all of the people who have been added over the years to the water system.
LIBRARY:
There has been a 12% increase in the usage of the library with no new personnel. People have requested that Sunday hours be added, which is unlikely. The Town of Ballston has put a hold on all new positions.
ZONING ORDINANCE REVIEW COMMITTEE:
Marv Schorr reported that a meeting was held on January 29 but only three members were present. They are working their way through the list of possible changes. Their next meeting will be on February 26 at 7:00 P.M. at the Town Hall. These meetings are open to the public.
ZONING:
Building fees collected for the month of January were $670.00 and no zoning fees. Rick Moon, Building Inspector, has been here most Tuesday nights from 7:00 P.M. - 9:00 P.M. We are still looking for an Assistant Zoning Administrator.
ZONING BOARD OF APPEALS:
They will be meeting tomorrow night. They will be discussing the Cell Tower Ordinance again. The Planning Board will look at it at their next meeting.
DISASTER PLANNING COMMITTEE:
Ron and Sandy Verola met with Mr. Dewey from Saratoga County Emergency Services. Sandy reported that we need to begin a mitigation file showing potential problem areas in the town that need to be identified such as water lines, roads and washout areas. When you have a mitigation file, we would be eligible to receive money through the county from the state when money is available. Ron Gavin and John Morgan need to put together a list of specific areas and specific problems. The names of contact people in our Emergency Operation Plan need to be updated. Councilman Lippiello will contact John Morgan.
Supervisor Acunto met with Assemblyman Tedisco about a week ago. The Town will be receiving a $5,000.00 member item grant for work on Packer Road. Marv Schorr stated that there is an Internet site of grants that are available. Supervisor Acunto said the Town Board met with the grant writer that is working with the Historic District Commission. She is looking into the possibility of grants for the proposed new town hall as well as other places.
RESOLUTIONS:
Motion made by Councilman Mitchell, seconded by Councilman Schroeder that Resolution #52, A RESOLUTION RECOGNIZING WESLEY WEAVER, JR., be approved:
Approved: Councilman Grattidge Yes
Motion made by Councilman Lippiello, seconded by Councilman Grattidge that Resolution #53, A RESOLUTION TO APPOINT A TOWN OF CHARLTON WATER DISTRICT STUDY COMMITTEE, be approved:
Approved: Councilman Grattidge Yes
Motion made by Supervisor Acunto, seconded by Councilman Schroeder that Resolution #54, A RESOLUTION TO APPOINT A TOWN OF CHARLTON DISASTER MITIGATION PLANNING COMMITTEE, be approved:
Approved: Councilman Grattidge Yes
Motion made by Councilman Grattidge, seconded by Councilman Schroeder that Resolution #55, A RESOLUTION TO TEMPORARILY ORDER LIMITING OF ROADS TO A 4 TON LIMIT, be approved:
Approved: Councilman Grattidge Yes
Motion made by Councilman Grattidge, seconded by Councilman Schroeder that Resolution #56, A RESOLUTION TO ENTER INTO AN AGREEMENT FOR WEB PAGE SERVICE, be approved:
Supervisor Acunto read the resolution to hold a public hearing on Water District #4 scheduled for Wednesday, March 19 at 7:00 P.M. at the Town Hall.
Motion made by Councilman Schroeder, seconded by Councilman Grattidge that Resolution #57, A RESOLUTION SETTING A DATE FOR A PUBLIC HEARING ON WATER DISTRICT #1, EXTENSION #4, be approved:
Supervisor Acunto stated that we would have stenographic minutes of this hearing.
John Simoni - What will the public notice read?
Supervisor Acunto read the public notice: "Please take notice that the following resolution has been adopted by the Town Board of the Town of Charlton and that a public hearing will be held upon the establishment of Extension No. 4 to the Charlton Water District No. 1 at the Town Hall, Charlton Road, Charlton, New York on the 19th day of March, 2003 at 7:00 P.M.
John Simoni - You seem to be missing the wording in there. This is for a proposed 49-house subdivision. That is what the petition is calling for. They petitioned you for that. We seem to be not stating that anyplace.
Mr. Tabner - It will have a description of the boundaries of the extension.
John Simoni - I think it is very important that we identify exactly what it is for. The petition received from them for an extension to the water district is for a proposed 49-house subdivision.
Supervisor Acunto - That also includes other residents.
John Simoni - I would think we would have to include that so let's identify it so when people read the article they will know exactly what it is all about.
Mr. Tabner - Basically, it meets the description that was in the petition and the maps that were set forth. If you want to I can add some descriptive language to it that will say it is Crooked Street.
Councilman Grattidge - There will be the legal notice and the notice in The Gazette. I am sure they will do a story on it.
Supervisor Acunto - I have already talked with Steve. Jack, if you could rework it and fax it over to Gail as soon as you can. What is our window of time?
Mr. Tabner - You can't publish before the 9th. You have to give at least 20 days notice of the hearing and not less than 10 days notice so your window of opportunity would be somewhere between the 1st of March and the 9th of March.
Approved: Councilman Grattidge Yes
COUNCILMAN REPORTS:
Councilman Schroeder - Ron, great job on the roads.
PRIVILEGE OF THE FLOOR:
Supervisor Acunto - From previous meetings, there are some questions and concerns about the upcoming public hearing and the water extension. We have in attendance tonight Attorneys John Tabner, Bill Keniry and Bob VanVranken and Town Engineer Jim Mitchell.
John Simoni - We have been confused with a lot of different information with regard to a referendum. We hear three words: permissive referendum, mandatory referendum and last week we picked up discretionary referendum. We are confused as to how that applies? What statutory provisions are there that would allow this particular action, if it was approved? Hopefully, it is not. If it is, what sort of rights would the residents have with regard to a referendum? What could the Town Board incorporate in their resolution to allow a referendum?
Mr. Tabner - Town Water Attorney - This particular proceeding is under Article 12 of the Town Law. It is started by a petition. There is no provision in Article 12 for a referendum. Let's get this straighten out about mandatory referendum and permissive referendum. A mandatory is one where you have to have a referendum, such as on a bond issue and things of that nature. Ironically, on a water district, you don't have to have a referendum on a bond issue because it's a (could not understand) improvement. A permissive referendum is one where the Town Board passes it. They have to pass it. If this was under Article 12A of the Town Law, which is for water districts also, that always has to be passed subject to a permissive referendum. What happens on that is that when the Town Board adopts a resolution, within 10 days after that resolution is adopted, it has to be posted in the town clerk's office? It has to be published in a (could not understand) publication. Then people have within 30 days after the resolution is adopted to come in and sign a petition. In signing a petition, you need 5% or 100 people, whichever is less. They file it with the Town Board and the Town Board schedules a permissive referendum. Water district referendums and water district petitions are a little different than most that you are familiar with. First of all, you don't have to be necessarily an elector of the town. If you own a piece of property, whether you live in town or you don't live in town, you can sign petitions and you can vote on water district elections. If you have a piece of property and it is owned by two people, as many of your properties are, husband and wife, each person gets a vote but if somebody owns four pieces of property they still only get one vote. A Corporation is entitled to a vote. That is a permissive referendum. There is no procedure here for a permissive referendum under Article 12. There are provisions in the town law for a referendum. There are also provisions for a permissive referendum. What those sections read is where a permissive referendum is required and there is no permissive referendum required under Article 12. If the Town Board wanted to it could also proceed on this under Article 12A and then that would provide a permissive referendum but I think if it comes up to that situation, the people who are entitled to vote are the people within the proposed extension. A permissive referendum reads it's the people within the proposed district or proposed extension. As far as I know, everyone that owns property in this extension signed the petition. I assume they would probably, if there was a referendum, vote for it. Basically, on this procedure, there is no provision for a permissive referendum or a mandatory referendum. If the Town Board wanted it could do that but the only people that could vote on that are people within the proposed extension itself.
John Simoni - Not people in the water district?
Mr. Tabner - No, not including the water district. As the statute reads, voters are people within the district, proposed district or extension.
Janet Reville - Crooked Street - Where does Article 12C fall? I know 12 and 12A are basically separate entities. You go one route or the other.
Mr. Tabner - 12C is for an improvement district. Not for a district. 12 and 12A are for districts. An improvement area is a little different than a district.
Sandy Verola - Redwood Drive - I thought an extension to a water district or a water district was considered an improvement district?
Mr. Tabner - The term improvement is used in 12 and 12A. 12C is an improvement district and is a little different than a water district or a sewer district.
Sandy Verola - It does mention water.
Mr. Tabner - You can have a water improvement district. There is no question about it. It's a slightly different type of animal.
Janet Reville - What is a water improvement?
Mr. Tabner - A water improvement area does the same thing as a water district. The difference about it is this. If you have a water improvement area, for instance, if you are going to build a new tank or something of that nature, what you do is take a proceeding and then that tank is separately assessed and you have to go through a different procedure. In a water district you would have that, for instance, that tank would be just for the area that it services. Maybe it serves 20 acres or 100 acres. In a water district, you'd have a proceeding under Section 2 or 2B of the Town Law and it covers the whole district.
Sandy Verola - But this isn't a district. This is an extension of an existing district. This doesn't make any sense to me. It would be like me getting a petition from my little friends because I didn't understand the law and going to your office and telling you, I've got a petition and I'm going to take your law library.
Mr. Tabner - Originally there was only Article 12. Then Article 12A was added. Then Article 12C was added. What is says under Article 12 is that if you as group want to extend, either want to form a district or extend a district, you get a petition and you file a map plan and report in the town clerk's office and you lay it out and present it to the assessor and they certify the petition and say it has been signed by the sufficient people and then the Town Board schedules a public hearing. The Town Board conducts the public hearing. The Town Board at its discretion, either approves the extension or doesn't approve the extension. That is Article 12. This petition was presented under Article 12.
Nick Verola - Redwood Drive - Why wasn't Article 12A used?
Mr. Tabner - That is up to the petitioners. The petitioners go out and circulate a petition. They prepare a petition and circulate it.
Nick Verola - The petitioners are not members of the water district.
Mr. Tabner - No, but they are taxpayers within the town. Taxpayers within the town have the right to form a petition and bring it into the town.
Nick Verola - The problem she is having is that you have a small group of people petitioning to take something away from a larger group of people.
Mr. Tabner - No, they aren't taking something away.
Nick Verola - It seems like a small group is ruling a larger group.
Mr. Tabner - No, because the water district would still function the same. They aren't taking anything away.
Sandy Verola - We don't know that. We don't know if the water district will function the same. We don't know if I am going to loose pressure or if my ad valorem tax is going to go up or my use rate is going to go up.
Mr. Tabner - First of all, your ad valorem tax shouldn't go up because the extension has to carry itself. The cost to the town of this extension is $1.00 because the developer in this instance has filed a letter of credit. If there was any cost in that extension, the extension would have to pay for it as well. They will also have to pay a tax for district facilities. For instance, for a water tower, if there is indebtedness for any transmission mains, they have to pay for that so that should reduce the taxes. They also have to pay the same water rates as everyone else. As far as the ad valorem tax, it shouldn't go up. All I can say is that the engineer's report has looked at the pressure, has looked at the resources available and that has been certified plus the fact if the Town Board approves this extension, then it has to go to the Department of Environmental Conservation and the Department of Health. DEC has to issue two permits. It has to issue a permit for a joint application for a water supply. This means they have to certify that it is a public water supply, that is sufficient and the quality and quantity are satisfactory. They also have to issue an area supply. DEC looks at the whole picture as far as how much water is available, how much is being used, etc. DOH looks at the quality of the water. Unless those two state organizations say that it is OK, the extension can't go any place. The engineer's report is on file in the town clerk's office.
Sandy Verola - Engineers have been wrong about other things. We have recently witnessed that.
John Simoni - I think what I am hearing from you I am finding hard to believe, not that I don't believe that the law is such. Under Article 12 or 12A or 12C, the current residents of the water district have no say in anybody that is trying to extend onto the water district.
Mr. Tabner - That is correct. John, they have the say in the sense that they have the right to come in here and be heard by the Town Board during a public hearing. The Town Board has the right to take into consideration all that is said. If the Town Board doesn't feel it looks to be in the public interest they can say "no".
John Simoni - Under 12, 12A or 12C the current residents of the water district have no legal remedy?
Mr. Tabner - There is always an Article 78 proceeding to review any action of the town board.
John Simoni - What is Article 7C?
Supervisor Acunto - Sandy referred to that in the Planning and Zoning Laws of New York State. It comes from the Secretary of State's Office. I think I sent a copy to you. Duration of Conditional Approval - is that what you are talking about?
Mr. Tabner read Article 7 of the Town Law. There is no provision for a permissive referendum.
Supervisor Acunto - My 7C is what Sandy referred to: Duration of Conditional Approval
Sandy Verola - That's different.
Mr. Tabner - That's on a subdivision. Somebody mentioned Discretionary Referendum. Under Article 12A, since a referendum is permitted, then the Town Board could go ahead and do it.
Sandy Verola - A discretionary referendum is the most flexible variety allowing the governing body to determine whether a particular action under consideration shall be subject to referendum and if so whether a mandatory referendum.
Mr. Tabner - Under Article 7 there are other types of actions of the Town Board which can be subject to a permissive referendum. It doesn't cover the water. That's other things.
Sandy Verola - I understand. I don't mean to be argumentative with you. It is the law that I have a problem with. It seems like a very unjust law.
Janet Reville - I just want to be completely clear on 12C. I understand it has nothing to do with Article 12 but I don't understand how it is different. If the tank was being installed in this extension, which it is, then would 12C apply?
Mr. Tabner - No. It's part of a district. The basic difference between an improvement area and a district is the way the finances work. That is about the only way that it is any different.
Janet Reville - So this is not considered an improvement. This is just considered an extension.
Mr. Tabner - It is an extension but it is a special improvement district.
Janet Reville - Who's paying for it?
Mr. Tabner - The developer is going to pay……………….
Janet Reville - I don't understand why 12C is not applicable in this case.
Mr. Tabner - I'm not saying it isn't if that was the way the proceeding was started. In some areas you use improvement areas and in other areas they use a district but these people, the developer, chose to petition under Article 12.
Janet Reville - So they had a choice of going 12, 12A or 12C and they selected 12. Tabner - You don't really have choice of going 12A because that has to be on a Town Board resolution. You can file a map plan and report with the town. You can come in and you can ask them to do it. The same thing is true under 12C. Then the Town Board could just say, "We don't want to proceed that way". When a petition is filed under 12, and assuming they meet all the criteria, then they are entitled to a public hearing. As long as they comply with the law, they are entitled to a public hearing.
Janet Reville - But 12C in no way blends in or is used with 12. They chose to use 12 and a public hearing is what will come of that.
Sandy Verola - They did that so we couldn't vote on it.
Jim Leupold - Edwin Drive - You said something about an "or" situation. Shouldn't the people that are within the water district or the ones petitioning for the extension have a right to vote on it?
Mr. Tabner - The way the statute runs, it says the petition for the district or the extension. The conjunction that they use in there is "or" not "and". If you have the permissive referendum, it is the voters of the district or the voters of the extension.
Jim Leupold - Who makes that decision of which one it is?
Mr. Tabner - It's pretty easy. You know who the people are in the district and you know who the taxpayers are in the extension. When you bring the petition in, it is given to the assessor because a person has to have at least half of the overall total and has to have half of the residential total. You always know who is in the district and who is in the extension.
Jim Leupold - When you say it is the "or" scenario, it is to do what?
Mr. Tabner - When they were asking who is going to vote, did the people in the district have an opportunity to vote? I said, "No, the people in the extension are the ones that have the right to vote on it".
Jim Leupold - Only. But that isn't half the population of the taxpayers in Charlton.
Mr. Tabner - The petition has to be signed by at least half of the taxpayers in the extension.
Jim Leupold - What is that number?
Mr. Tabner - I think there are about five. There are three or four on Crooked Street and then the subdivision. I think it was 100% unanimous that signed because they went down Crooked Street (could not understand).
Sandy Verola - What you are saying would make all the sense in the world to me if we were talking about putting in a brand new district but when you are talking about coming in to a district that exists…………….
Mr. Tabner - You have what are known as district charges. District charges are a tower, a pumping station or an extra large transmission main. As far as the district charges, this extension has to participate in the district charges also so you are adding onto the tax base. You are not taking away from the tax base.
Jim Leupold - This would be proposed Extension #4. Did Extension #2 and #3 go through the same process?
Mr. Tabner - Extension #2 is the one in front of the Town Hall. That petition come in from the residents. When that came in the same procedure was followed with a public hearing. There was no referendum on that. Extension #3 was a small area on the Ballston town line. There were 10 or 11 houses with an extreme situation. They got together and petitioned the
Town Board. They hired their own engineer and drew up a map plan and report. They entered into an escrow agreement with the Town Board. They built the extension. They paid the cost of it. They turned it over to the Town at no charge. They paid for going to DEC and DOH. Acorn Drive was an area of the town that was desperate for water. They formed an association. They got a petition together. Got an engineering report. Brought it to the Town Board. They had a public hearing. They did the same procedure as this one.
Councilman Grattidge - The main street extension was a little bit different because the residents came in with a petition asking for water to run through the main street. Then the Town Board had the public hearing and then we actually did something with a bond.
Mr. Tabner - Alan is right. Extension #2 was financed with town funds.
Joe Marchesiello - Crooked Street - I have a filing question. The plot plan. If public water is going to be used, does the plot plan filed with the county require water lines and a water tank on it?
Jim Mitchell, Town Engineer from Environmental Design Partnership - When this subdivision was approved in 1990 or 1992 the Health Department didn't require that all the plans be filed. They only required that the real property information be filed. The subdivision map was filed without any other information.
Joe Marchesiello - So when that was filed, and it hasn't been accurate enough, now that it's going to be accurate, are they grandfathered in or are they still required to submit a plot plan with all this information on it?
Jim Mitchell - We talked to the Health Department about that and because of the changes that they have been making in the water system itself with the storage tank and a couple of other changes. The Health Department is probably going to require them to re-file the plans with the Health Department. It may require them to re-file with the county, too.
Joe Marchesiello - If there is a re-filing that is required, doesn't this now require for this to go back to the Planning Board seeing now it is a revised subdivision?
Jim Mitchell - We don't know if the re-filing is going to be required but that is going to have to be an issue that will be taken up in the future.
Joe Marachesiello - What comes first, the chicken or the egg, if you are going to go through with the water district extension but don't know if you have Planning Board approval to proceed with the revised development.
Jim Mitchell - It is my understanding that you could have a water district extension and a subdivision approval concurrently. It doesn't have to be one before the other.
Mr. Keniry - Town Planning Board Attorney - I think that is absolutely true.
Joe Marchesiello - You say the Health Department, what does the county require?
Jim Mitchell - I think their policy now is to ask for all of the sheets of the subdivision plan to be filed but that is to cooperate with the Health Department requirements.
Joe Marchesiello - So if the county is requiring that, I don't understand how you can move forward if the county requires a new plot, how that plot could be filed without going back to the Planning Board and another public hearing. If you read the process here, aren't you supposed to have another public hearing if there is a major revision to the plot plan?
Mr. Keniry - But I think what Mr. Mitchell is pointing out is that there is a question of whether it will ever end up back….. I don't think that the Health Department has come down either way on it. The Health Department has basically said that they are reserving the right to look at this again. My understand of the Health Department's position is, if there are some changes that are made, I think it is their intention to then look at it. I think then the question becomes whether or not the Planning Board will have some form of jurisdiction over it. As we sit here now, this map has been filed. There is no question. We have obtained verified copies from the County Clerk's Office. It had been signed by the chairman of the Planning Board at that time. It stands.
Joe Marchesiello - But I did hear him say the county does require…I heard him say the Health Department may require but I heard you also say the county requires it now.
Jim Mitchell - Saratoga County is asking that all sheets in a subdivision plan be filed. If it does turn out to require new subdivision approval, then all those sheets would be required. They would have to be filed.
Dale Delano - Meadowbrook Lane - I would like to propose an analogy to all this business about Articles A, B and C and so forth. Considered that there were a cluster of homeowners, maybe four of them, who had decided they had to drill a well and they paid for drilling a 300 foot well and they paid for a deep well pump and they got all the piping that they paid for and they lived that way very happily. Then someone next door decided they wanted to build a house. Your proceedings are saying that that person could say I want to run my pipe from my house over to your well. I'll pay you for the water. You've paid for the pump and the piping all yourself over the past 10 years. I won't have to help you pay for that anymore because it is already paid for or if you haven't, I will split the payments with you. Is that an analogy of what is going on here? Could you try and keep your explanation short and brief.
Mr. Tabner - It isn't a good analogy because, first of all, your analogy deals with private property. We're talking here about public property. We're talking about a public water system.
Dale Delano - I think, though, that the people who have been paying on the loan which purchased the water tank and parts consider it their personal property.
Mr. Tabner - That's true. But the legislature says if it is an extension of this nature under Article 12, this is the procedure that you have the right to follow and that you as a taxpayer within the town, and if you want to be within this proposed extension or proposed district, you have the right to prepare this petition and present it. Don't forget, all that is being decided tonight is whether or not there is a public hearing. The public hearing gives everybody a chance. Your analogy is with private property. It is the same way as if I own a piece of property here and I put a nice two-lane macadam road from one end to the other and you want to drive down it and I say you can't drive down it because it is my road. You can't tell me that I can't drive along the road out here because it is a public highway. There is a difference between private property and public property.
Jim Leupold - What happens if the town board says "No" to this water extension? What recourse would those people have to go back at it again and ask again?
Mr. Tabner - There are two things they could do. They could bring an Article 78 proceeding to contest that decision of the town board on the basis that it is arbitrary and capricious. If the reasons were completely legitimate and if the town board was arbitrary and capricious then the court could come back and say, "You get together again and you give these people a positive finding".
Jim Leupold - Say it was the other way around. Say they had legitimate reasons for turning them down.
Mr. Tabner -If they have legitimate reasons for turning them down, they turn them down.
Jim Leupold - Then that group of people can't petition again or come up with another scenario?
Joe Marchesiello - If it is approved, is there a time limit as to how long it's approved for. In other words, if we go forth and you vote "Yes" that we are going to have the extension……………
Mr. Tabner - You mean for them to build it?
Joe Marchesiello - Yes.
Mr. Tabner - Basically they can build it. The escrow agreement that they have set up says it will have to be built in three years. As I understand the subdivision approval, I assume they will be putting these in with the (could not understand). It's not that big a project (could not understand).
Supervisor Acunto - Jim, the agreement reads that prior to December 31, 2006. Roughly three years.
Bob Killeen, Jr. - Charlton Road - I have several questions. One is, the town board could turn it down
Mr. Tabner - What happens with DEC is, how many gallons of water do you have available (could not understand). You have "x" number of gallons of water available. What is your present demand? When you talk about demands you are talking about average daily demands. You are talking about hourly peaks, etc. When you go in and you say you are going to have 49 houses in there. DEC is going to charge you for 49 houses. As far as they are concerned you have used that water. From reading the engineers report it is my understand, the tank there will be added capacity sufficient for these 49 houses plus some additional number of houses.
Jim Mitchell - 49 houses use around 14,000 gallons a day and they are going to install a 50,000-gallon tank.
Bob Killeen, Jr. - That is a storage tank. It is strictly storage. That does not create any pressure.
Jim Mitchell - It is pressurized.
Bob Killeen, Jr. - So in other words, the pumps that supply the pressure to the proposed 49-houses would act like a conventional household pump and pressurize that tank? That tank is going to have pressure in it?
Jim Mitchell - Discharge from the 50,000-gallon tank will be pressurized at the same pressure as the water main. It is effectively the same as adding 50,000 gallons to the storage tank if you could do that but we aren't going to do that so they are adding it onto the ground and pumping it into the main.
Bob Killeen, Jr. - But they are pumping from the storage tank on the ground up to the tank that is currently existing. In other words, since the town is already drawing over their 150,000 gallon per day limit through that tank, that is where your pressure comes from, so what you are telling me to have 50,000 gallons more sitting on the ground it needs to be pumped up to that tank. That is an acceptable procedure?
Jim Mitchell - Yes. They are supplementing the total storage. (Changed tape)
Bob Killeen, Jr. - The Town accepts this and takes over maintenance and repairs on this tank? The builder isn't going to be there forever to supply maintenance crews and repairs crews should something go wrong. It becomes the town's liability.
Mr. Tabner - The agreement that has been presented to the town by the developer provides that they will put it in. It has to pass muster with all the state agencies. There is a one-year guarantee on there, the same as you would have with any municipal contract. When you let contracts for a water district, you require a one-year guarantee. There is also an escrow in there so that if there is anything that needs to be repaired during that first year, they don't repair it. The town has the money available to them to make those repairs. The agreement that they presented to us has the same basic guaranteed provisions that you have in any municipal contract. When the water main is installed, if it gets installed, when the tank is installed and everything else, Mr. Mitchell would designate an engineer who would have people inspecting it. In other words, you just don't put a bunch of iron in the ground and you take it over.
Bob Killeen, Jr. - The town could also enact more stringent regulations, though, and say we don't want a tank (could not understand) we want a conventional water tower, too. Is that the town's option? They could say if that tank, the pumps, all the extra mechanical hardware that goes with it, we don't want to accept the liability for that. We want another water tower, something that works whether there is electricity to it or not. That is the town's option? Just like a perc test, you can go stricter than the state or more lenient.
Mr. Tabner- If there is a reason for doing it. There is more than one way to provide a facility. As long as it has been added in accordance with professional engineering standards, it is very difficult to say, "You can't use that". There are a lot of pressurized water systems around. Not all of them have the tank in the air. I have presented water districts for a long time. A lot of people don't like those tanks in the air.
Dimmy Miner - Vines Road - We are talking about changing the plan that was presented to the Planning Board in 19.. whatever. If they are going to put something in the ground or put it around there, couldn't that change the plan that the Planning Board originally OK'ed.
Mr. Keniry - There are two things, Dimmy. In the first instance, going back to the very early 1990's, that was the time that the intense subdivision review occurred. What happened in connection with the petition for the water district was a function of the Planning Board that was really constrained and really limited and is a review that is in the nature of what is called site plan review. That is just looking at the physical characteristics of what is to occur there with respect to the physical improvements that pertain to the site where this water tank is located. That's the extent of it.
Dimmy Miner - If they had a change in that plan, something (could not understand) and I believe it is in there, then they have changed the plan that we OK'ed. Why are you usurping, in my opinion, what the town zoning law says and why aren't you letting that go back to the Planning Board.
Mr. Keniry - In the first instance I don't usurp because I don't take a position one way or the other with respect to the application. In the second instance, however, it is very important to remember that the Planning Board, and remember my word, was "constrained and restrained" with respect to the extent of the review only as to site plan. This applicant proposed no changes that any of us are aware of so to this plan. That subdivision plan, and I think the minutes even reflect it, the subdivision plan that was approved, that's a final mylar, is what this applicant intends to proceed with.
Joe Marchesiello - Except for one thing, and this is where I am coming from also is, the water tank was not on that approved mylar. That's a big, major change and I don't see how you can say nothing has changed when they are now putting a water tank on that property.
Mr. Keniry - But, Joe, that is accurate. Nothing has changed. We are talking about subdivisions. Essentially what we are talking about is your Planning Board, at the town's level, ability to draw lines on a map or guiding an applicant to draw lines on a map. With respect to the site plan, in this instance, those lines were already drawn. When your current Planning Board looked at it, they had either jurisdiction or power to alter that filed map. In the same manner, the applicant doesn't have the power to alter that map. If they choose to alter the map, they're back.
Sandy Verola - There are six pages of conditions attached to this approval which I think needed a conditional approval. The state says that a conditional approval of a final plat is only good for 180 days and they can come back to the Planning Board and ask for a 90-day extension. The Planning Board has the option of granting the extension. Then they can come back one more time for another 90-day extension and then it is done. Why is that not applying to this at all?
Mr. Keniry - I think there are a number of things. In the first instance, your Town Board has asked that we consider this issue as result of either your request or perhaps other residents or members of the Town Board ‘s. In this instance what we find is basically this: November 15 of 1993 final approval for Phase 1 was granted. On December 30, 1993 Mr. St. John signed the maps and the mylar was filed January 11, 1994. I think you have it correct with respect to the 180 days. That is the section that is in the current town law. Presently that deals with duration's of conditional approvals of final plats but I think the distinction that you have here is, you have a final approval. You can't just read Section 7C alone. You have to read it in connection with entirety of Section 276 of the Town Law. The final approval, in this instance, is evidenced by two significant events that occur. The first is the one that I mentioned December 30, 1993 when the Chairman of the Planning Board signed it. The second, which is really the ringing of the bell, is January 11, 1994 when the mylar was filed. I went a little bit further also because the Town Board gave us some instructions to be somewhat expansive in our consideration of these things for you all. It looks like the effective date of Subdivision C within Section 7 in 276 of the Town Law was actually November of 1994 so our mylar is November of 1994.
Sandy Verola - But they didn't ask for an extension. They didn't meet the conditions.
John Simoni - If they don't meet the conditions how do you get final approval?
Sandy Verola - There were several things that they could have done according to that agreement that (Could not understand) could have been done. If that's what the law says they have to do, are we just going to ignore what the law says and the law goes away? I'm having a little difficulty understanding that concept.
Mr. VanVranken - Town Attorney - I think the distinction, and I looked at this way back in 1998 sometime when I met with the Town Board early on, there are two kinds of conditions. It is very typical for a subdivision approval, and in this case you will recall this is the one and only cluster development within the Town of Charlton, to have a subdivision with conditions that are not applicable to that time frame. That time frame happens when you have a situation where a Planning Board would say to a developer or an applicant, "We will grant you final approval subject to a set of conditions. Come back to see us within that 180-day time limit." Bill is correct when he says that did not happen here. What happened here is there was final approval and a filing. So the conditions you see on the map are conditions that typically would run with any subdivision. You see subdivisions all the time which have---This subdivision is conditioned upon identification of new property owners, completion of certain things, etc. as the subdivision unfolds. I read your literature, Sandy, and I think we can read Section 276, 7C of the Town Law. That really is before the fact, not after the fact. My view is that when you look at the dates, once that was signed by Mr. St. John in December and filed the next month, that 180 days and the two extensions, that issue is resolved and then you are into the subdivision commission which may be a different subject altogether.
John Simoni - If there are conditions that are stated in the conditions sheets that must be met prior to signing of the plot that were not met, is that not an important event?
Mr. VanVranken - Could be.
John Simoni - There is one condition that is very definitely stated that says prior to the signing of the plot, the 38 acres shall be turned over to the town. It says prior to signing the plot. It is a condition. It is very black and white. In fact, the town has never established any process if they want the land or how they want the land, etc., etc., etc.
Mr. VanVranken - That is an issue we have taken a hard look at and there were attempts at attempting to convey it. Again, when I looked at this with the Town Board after I became the Attorney to the Town in 1998, we look at this, all of these things and the Town Board made it a judgment call, based on my recommendation and we considered those things. Where do you draw the line? You have identified a line that might or might not have been drawn. When I took a look at the file that was given to me by my predecessor I said, "Drawing the line "there" as an example is not the place to draw it". Again, remembering at that time, that the time the approval was filed that specific provision of 276 was not statutory law and I made a judgment call. You have heard three attorneys tonight. Lawyering is not a science, it is an art, and you make a judgement based on the facts that you have. In that case, my judgment was that isn't where you draw the line but you keep that in mind. My view is, as we sit here tonight, is it's not over yet.
John Simoni - It seems to be a big one. Are there any laws in a plot that can determine (could not understand) laws like this one I just read off that are pertinent to this water public hearing?
Mr. Tabner - John, the only thing that would be pertinent is if there was some flaw in the water system such as the delivery of the water system, design of the water system or something like that because when you have a public hearing on a water district that is exactly what you are having it on, the water district and you are having it on is it in the interest of the people to do this? For instance, whether or not the grades of the streets are proper, that isn't going to interfere with the water lines because they will be underground. Towns were really formed just as taxing districts. Towns were made to furnish water, sewers, this, that and everything else. When those of us started moving out into the towns and the suburbs there had to be a vehicle formed. A village and a city, as part of their charter, can furnish these things. So in the town, the vehicle is, you form these districts.
John Simoni - The extension of a water district, it is pertinent how it effects a community. You're really not talking about the quality of the water inside the pipe. It does have an effect and that is very pertinent.
Mr. Tabner - That's what the public hearing is for. There are so many things on a subdivision plan that could be there that really having nothing to do with the water district.
John Simoni - You could apply for an extension to a water district without having an approved subdivision?
Mr. Tabner - Oh, yes. You don't have to have a subdivision for a water district extension.
John Simoni - Could we relate a little more with Mr. Mitchell and what Bob Killeen was asking about? The water is being pumped from Glenville to our pumphouse on Stage Road. That is where is comes first?
Mr. Mitchell - Yes.
John Simoni - From there our water goes?
Mr. Mitchell - Into the distribution system, into the 12" main and some of it goes to the tower.
John Simoni - In this new presentation, what is going to change?
Mr. Mitchell - Nothing really. There will be a 50,000-gallon storage cell there that has the ability to add 50,000 gallons of storage just as if it you added it right to the main tank.
John Simoni - So our transmission lines will fill that the same way they fill the tower.
Mr. Mitchell - Yes. It will all fill at the same time.
John Simoni - That storage tank will supply where?
Mr. Mitchell - It will go right into the line, back into the tower and into the homes.
John Simoni - It will go back to the tower or into the homes.
Bob Killeen, Jr. - This isn't something that is in series. It is kind of in parallel. The water tower works in parallel. Our pumping station draws from Glenville into this new supposed water tank and then their pumps fill our water tower and our water tower is distributing it.
Councilman Grattidge - I think they require it mainly just to give you a buffer if there is a disruption in a main. It gives you the capability of being able to take care of your customers for the 24-hour period until you get your supply back. That is why the state asks the municipalities to have a certain amount of water on storage. Otherwise everyone would just have pressurized lines. If anything happened to that distribution line, everyone would be out right then. This way you have a period of time, that if your source is disrupted, you have supply.
Bob Killeen, Jr. - I believe New York State requires new requirements for waste water control runoff from roads, drainage ditches, catch basins and things like that. That is going to need to be incorporated with this development. Anything that runs off the roads, any turn arounds, cul-de-sacs or anything that has to be constructed, there are new requirements going into effect very soon. Would that or would that not be a major change to this plot plan? It is something that is being enacted in the very near future and you are going to be required to do it if it falls within an indigenous stream or pond. That is a major change.
Mr. Mitchell - I think it takes effect on March 15 but I don't know how it will impact a subdivision that is already approved. I don't think it is retroactive.
Mr. Tabner - I know it effects the public water systems because we had a meeting a few weeks ago.
Bob Killeen, Jr. - I'm talking about rainwater, surface water. It used to go into drainage ditches, streams or something like that. Now instead of going into a pond or stream, I believe, unless I am mistaken, you have to treat that somewhere. That is a major change to your plot plan. That could be substantial.
Mr. Mitchell - I would think that the developer would have to go back and get a new subdivision approval, new approvals from EnCon and the Department of Health. They would have to comply with the new Storm Water Management Guidelines, I would guess.
Bob Killeen, Jr. - That is a major change. That's like re-routing roads because DOT requires you (could not understand)
Mr. Mitchell - It's not really a huge difference between what the have in their Storm Water Management Plan and what would be required to comply with the new regulations, as I understand them.
Marv Schorr - There is a population threshold on the new regulations. I don't think it applies to a town the size of Charlton.
Dale Delano - Why wouldn't it make more sense to run a separate line to this subdivision along Stage Road then along Crooked Street and over to the subdivision into that tank that they are providing that you say in pressurized? Why isn't that an easier solution?
Mr. Mitchell - Because the water system is right at the end of Komar Drive. It is only a short distance to the subdivision plot on Crooked Street.
Dale Delano - So you are tapping off right at Komar Drive?
Mr. Mitchell - Yes. The engineers proposed to tap the line at Komar Drive.
Dale Delano - You stated earlier that the water tower has more capacity than we are using.
Mr. Mitchell - That's not what I said. In 1998, the average water consumption was about 157,000 gallons a day and it is a 150,000-gallon tank.
Dale Delano - What is the design rule for the size of the tank?
Mr. Mitchell - The design rule is that the tank is supposed to be equal to the average day. Theoretically we should have 157,000 gallons for 157,000 gallons of consumption.
Dale Delano - So we are about at the limit?
Mr. Mitchell - That's right.
Dale Delano - That is why you are putting in this new tank?
Mr. Mitchell - That is why the developers have proposed (could not understand) tank.
Dale Delano - If the power shuts off and we want to have a days worth of water, you'd have to close a valve and have a line going over to that subdivision?
Mr. Mitchell - No, the generators do that. (could not understand) would start up and supply 50,000 gallons into the grid during that period of time.
Dale Delano - You are going to have generators and pumps?
Mr. Mitchell - Yes, there are pumps in the tank and a generator.
Jim Leupold - Bill, you mentioned there wasn't a major change to the subdivision which would constitute that having to go back to the Planning Board. If there is a new tank that is going to be installed, are they using an existing lot in place of a house being built and that is why we're seeing the lines didn't get redrawn and that is why they didn't have to come back?
Mr. Keniry - I believe that is the case. I believe they located the tank on an existing lot.
Supervisor Acunto - The revised map dated in October of 2002 is showing the proposed storage tank no longer on Lot #1. It is showing it off the lot in a common area.
Councilman Schroeder - Open space conveyed to the Homeowner's Association.
Supervisor Acunto - What did the Planning Board approve? The location?
Connie Wood - We didn't do any approval. We only did a SEQRA. I recall that it was on Lot #1.
Mr. Keniry - I believe it was at that time. The location has been a subject of some discussion along the way amongst the engineers. I think the applicant had come forward with certain information and there was some dialog back and forth. Connie is correct in terms of what the Planning Board did at the time. I think you may have participated a little bit or come to some of those meetings and that was with respect to the SEQRA, the environmental significance or impact of the application.
Jim Leupold - I got the impression based on your previous statement that was the only way that this would have to go back to the Planning Board was if they were going to change a line in the drawing.
Mr. Keniry - That's right.
Jim Leupold - The tank being installed wherever it is going to be, whether it was in the common area or whatever, is that significant enough that it causes the lines to be changed and then force them to have to go to the Planning Board?
Mr. Keniry - The general answer is this, if there are going to be lines drawn on a map with respect to subdividing lots or land and they are different than that which exists on that map which is filed in the county clerk's office, then that is something that the Planning Board is going to have to consider.
Jim Leupold - Who has to tell the developer that what you just did caused relining and go back (could not understand).
Mr. Keniry - There is no question that you have really good standards in the town in terms of subdivisions. It should become apparent to the developer that the developer is in a position where they have to become an applicant before your Planning Board for those approvals for a subdivision.
Joe Marchesiello - But if it isn't apparent to them, who's going to raise their hand in the town and say, "Look you have to stop. You have to reapply"?
Mr. Keniry - The Town does.
Joe Marchesiello - Who?
Mr. Keniry - I don't know that there is a particular person.
Joe Marchesiello - The Town Board? But this where we have been at before in other meetings. From what we are seeing, no one in the town is gonna stand up, whether it be on the Board or the Planning Board to say, "OK. Stop. You have to go back to the Planning Board for approval".
Mr. Keniry - You're talking about the whole system in terms of how it works. You have a building inspector. You have a code enforcement officer. You've got to get building permits. You stop people right there at the front line in terms of building permits.
Joe Marchesiello - There needs to be some fairness too, here. Are you going to wait until a guy is ready to put a shovel in the ground and say, "Stop" or now when you are going through the water approval, say "Look? We're going ahead with the water approval but you've made some changes here and you are going to have to go back to the Planning Board because you might have to go for a public hearing just for the development itself".
Mr. Tabner - I think you have to look at that and say, what changes you are making, does it affect water at all. If you change some lot lines, how is that going to affect the water.
Joe Marchesiello - The water aside, it's for a development. If the development isn't approved yet……….
Mr. Tabner - You don't have to have a subdivision to have a water district.
Joe Marchesiello - I know but you can go ahead with the water approval but if the builder is assuming he has approval to build, you can't let him go on with that assumption. Somebody from the town has to raise their hand and say, "Look. We need to tell this builder he has to go back to the Planning Board and get approval now because he has changed the plot plan".
Jim Leupold - Is the result of whatever this new map is having any changes in the plot lines?
Mr. Keniry - I don't know in terms of what you have now.
Jim Leupold - Does anybody know?
Mr. VanVranken - Meaning the 49 original lots.
Jim Leupold - Right. The original lines that were drawn on the mylar as filed.
Mr. VanVranken - To my knowledge, no.
Jim Leupold - They are identical to what this map is showing?
Mr. VanVranken - To my knowledge, the original 49 are the same 49.
Supervisor Acunto - From my uneducated experience, the changes I see are the addition of three parcels of land of residents along Crooked Street and the addition of a proposed storage tank. The rest of it, to me, looks like it is the same map we have been looking at time and time again.
Mr. VanVranken - I think the question was, the original cluster development approval had 49 lots. I believe the gentleman's question is, are they the same 49 lots there were approved in December
Jim Leupold - How about the water tank, is that on an existing lot?
Mr. VanVranken - No.
Jim Leupold - It is in a common area. That is still part of this development but it wasn't designated to be a property or a house built on it. They just happen to have this area where they could put this whole thing. It doesn't affect the lines being drawn?
Mr. VanVranken - I'm not sure on that.
Jim Leupold - It does effect the lines being drawn?
Mr. VanVranken - I think it could because if you are going to carve out a lot within a, what's called for lack of a better word, a common area, in my opinion, I think that's a subdivision and I think that at least as to that extent there would need to be a subdivision approval.
Jim Leupold - So if, in fact, that did or does happen, does it go to you guys who are giving your legal advice to the Board, to steer them in the direction of, "yes", you have all the different rights to tell the developer they have to go back to the Planning Board or "no" they don't. All this discussion has to do with what are the legal rights of the developer and what are the legal rights of the people that live in the town.
Mr. VanVranken - I think you are right and I can say without disclosing confidences that there have been lots of discussions between Counsel to the Board and the Board themselves about this very issue. It is a serious concern and I think your concerns have been considered and it is a question at this point in time about not necessarily if, but when, and what is appropriate based on where things stand. You could have several scenarios and each scenario may derive a different result. Bill and I have had some very intense discussions with this Board and they are very well aware of your question and our respective concerns. In my opinion, this is not over.
John Simoni - I am beginning to see this as two separate issues. (1.) We have a petition for water. The Board has the option of turning it down if they want to. Than, another option we have is our Board can then attack the subdivision itself with all the flaws that we have on there. Two separate actions. Am I right? Is that a possibility?
Mr. VanVranken - I can speak for myself. In fairness to the developer and I am not in favor of or opposed to the project, I am neutral on the project, but I think in fairness to the developer that some point in time that discussion needs to be had, in my opinion, before this Board votes "yea" or "nay" on the water district extension.
Councilman Schroeder - I am looking at the map and the proposed tank. That lot says "Open Space conveyed to the Homeowners Association" that there is none yet that I am aware of. In other places it says "Open Space conveyed to the Town of Charlton" and that hasn't happened yet. Does that effect the efficacy of this new map from October, 2002? This is the first time I have seen this.
Mr. VanVranken - My understanding is that there is a (could not understand) agreement that should this move forward that the Town was interested in having most of the land become part homeowners association with some sections along the creek to be deeded over and made accessible to the Town. That is an open question under consideration. That is part of this whole discussion that has been brought here tonight. It is an issue.
Supervisor Acunto - I hope we have answered your questions. Some of you may not have appreciated the answers but that's the way it is.
Motion made by Councilman Grattidge, seconded by Councilman Schroeder, A Motion to adjourn to an executive session for a discussion with the attorneys present at the meeting, be approved:
Approved: Councilman Grattidge Yes
After everyone had the opportunity to speak, the meeting was adjourned at 10:00 P.M.
The executive session ended at 10:50 P.M.
Respectfully submitted, |
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