Town of Charlton

Planning Board Minutes

784 Charlton Road

Charlton, New York 12019

 

Minutes of Planning Board Meeting – November 19, 2007

 

Chairman Raymond Black called the meeting to order at 7:10 p.m. at the John W. Taylor Hall.

 

Present: Raymond Black, Chairman, Constance Wood, Jay Wilkinson, John Kadlecek, Mark Hodgkins, Dawn Szurek, Mike Armer, William Keniry, Esq., Planning Board Attorney, Susan York, Planning Board clerk and Kimberly Caron, Recording Secretary. 

 

AGENDA MEETING:

 

Minutes

 

Mr. Black asked for comments on the draft of the October meeting minutes.  Mrs. York previously provided comments via mail.  No other comments were presented.

 

Mr. Black stated that there are no Public Hearings.

 

Schaus/MacQueen (247-2-20.212)

 

Mr. Black stated that this is a lot line change.  Mr. Black stated that the applicants are looking to take a large portion of one lot and attach it to the adjacent lot.

 

Mr. Black stated that the only question that comes up pertains to the pond in the back.  Mr. Black stated that the applicants would like to attach the backland to the adjacent lot.  Mr. Black stated that the applicants would like to keep the lot line only 30 feet away from the pond so that it leaves the stream on the property they own.  Mr. Black stated that it is a 4-foot wide seasonal stream.  Mr. Black stated that the requirement is 40 feet, which would put the line on the other side of the stream.

 

Mr. LaFountain stated that since this is a rear yard setback, the pond must be 50 feet from the property line, not just 40 feet.

 

Mr. Black stated that the substantial justice clause allows the Planning Board to approve violations to zoning requirements if in the process of doing that there is substantial justice being done for the applicant or the town in general. 

 

Mr. Kadlecek stated that it would be a convenience to the applicant.

 

Mr. Black stated that the applicants either have to move the line to 50 feet away from the pond or they need to go before the ZBA for a variance.

 

Mr. Keniry clarified the substantial justice criteria for the Board.

 

 

Charlton Fire District #1/VanGuilder (247-2-14.11)

 

Mr. Black stated that this is not a subdivision intended for a private dwelling.  Mr. Black stated that the Zoning Regulations state that this would be subject to site plan review.  Mr. Black stated that as part of this subdivision, since its intended purpose is the construction of a firehouse, then the Board has to have the plans for the firehouse in detail so that the Board can do a site plan review in accordance with the Zoning Ordinance.

 

Mr. Black stated that the Board cannot accept the application as a preliminary application because the Board does not have a complete application without the appropriate information to do a site plan review.

 

Mr. Kadlecek inquired if the Board could separate the two.

 

Mr. Black stated that he does not know the answer to that.  Mr. Black stated that it probably could be done but since the stated purpose is to do it for a firehouse and a subdivision requires a Public Hearing and a site plan review also requires a Public Hearing it seems to be a more legitimate process to do it together.

 

Mr. Keniry stated that in 2005 there was some issue with the proposed site then and that site having been “illegally” subdivided in that they just had a deed conveyance without any municipal approvals.

 

Mrs. Wood stated that it was originally subdivided into two building lots, and then it was sold to the Fire House.

 

Mr. Keniry stated that after August 2005, the Fire District raised the issue of whether or not they were subject to the Planning Board’s jurisdiction.  Mr. Keniry stated that there was an adverse relationship where they implied that they were going to do whatever they wanted to do on their property.  Mr. Keniry stated that the Board did an advisory memo to their counsel, which was brought back to the membership of the Fire District.  Mr. Keniry stated that a few months ago Diane Rabideau contacted him to ascertain the situation procedurally.  Mr. Keniry stated that he pointed out the memos of law and some tactical things to Mr. Rabideau.  Mr. Keniry stated that he thinks the Fire District’s intent is to start this off on the right foot.

 

Mrs. Wood inquired if the Fire District was aware that they would have to do this in a joint situation.

 

Mr. Keniry stated that he did not know.  Mr. Keniry stated that at the time he spoke to Mr. Rabideau no plans had been made and Mr. Rabideau questions were as a practical matter.

 

Mr. Keniry stated that this subdivision would need to proceed as a dual action and is subject to the Zoning Ordinance.  Mr. Keniry read a portion of the Zoning Ordinance pertaining to the Residential Agricultural District.  Mr. Keniry stated that the chart stated that Fire Districts are a permitted use subject to a site plan review.  Mr. Keniry stated that the applicant needs a site plan application in order to move forward.

 

Mrs. Wood stated that she thought that the Planning Board could not assume site plan review power and that was something that was designated by the Town Board.

 

Mr. Keniry stated that on page 16a of the Zoning Ordinance, part a is libraries, police and fire stations and community buildings and it states that “site plan approval by Town of Charlton Planning Board required” (see Local Law page 109 appendix B5) which was the local law in 1979. 

 

Mr. Black inquired if the Board should require the applicant’s to get the Town’s permission before the Board proceeds.

 

Mr. Keniry stated that within the Local Law (page 109) it does permit the Board to consider the “need” of the proposed use.

 

Mr. Black stated that his concern is that the applicants proceed with the subdivision and do the site plan review and then the firehouse is not approved.  Mr. Black inquired if that would allow the subdivision to be used as a residential building lot to sell a house.

 

Mr. Keniry stated that not if the Board approves the site plan.  Mr. Keniry stated that the Board could consider having some type of a sunset expiration relative to the approval.

 

Mr. Black stated that if the subdivision is approved and the site plan is approved for the firehouse, and a year passes, and they do not have funding approval, the deed is filed and they are paying taxes on the property.  If the Board puts a sunset expiration clause on the plan, could the Fire district then sell the parcel as a building lot?

 

Mr. Keniry stated that was correct.  Mr. Keniry gave the Board an example.

 

Mr. Black stated that the contract between the Emerichs and the Fire District implies that the transfer of the title and subject property is subject to approval by local and state governing bodies.  Mr. Black stated that the contract further states that if such approvals are not obtained by the time of closing (January 2, 2008) the parties may agree in writing to extend the time and if such approvals are not granted the contract is null and void.   Mr. Black inquired if that included the approval for funding.

 

The Board reviewed the contract of sale.

 

Mr. Black stated that his opinion is that because the stated purpose of this is for the construction of a Fire House to operate off of that property, that in order to go through the subdivision process the Board needs a site plan of the building itself.  Mr. Black stated as the purchase agreement is contingent upon there being municipal approval of the ability to operate, and the capital improvements on it, there will not be a sale without it and without the sale therefore that approval is also needed before the subdivision is granted.  Mr. Black inquired if it could be approved with a contingency that there be Fire District approval to build a firehouse.

 

Mr. Keniry inquired if Mr. Black was saying that he wanted to have the two approvals co-dependant.

 

Mr. Black stated yes, unless the Emerichs wanted to just subdivide.

 

Mr. Keniry stated that as it stands now he agrees.

 

Mr. Black stated that it is how the contract reads.  It has a very specific purpose.

 

Mr. Keniry stated that the application on its face could go forward relative to the subdivision with respect to the drawing of the lines however, relative to its stated intended use, it is subject to site plan review.

 

Heflin/Durst (255-1-40.1, 41, 43.1, 43.2, 43.3)

 

Mr. Black stated that there is no action at this time.

 

Reports

 

Mr. Black stated that there would be standard reports.

 

The meeting was closed at 7:35 p.m.

 

BUSINESS MEETING

 

Opened at 7:36 p.m. with the Pledge of Allegiance.

 

Mr. Black stated that Mike Armer is sitting in for Chris Mitchell.

 

Minutes

 

Mr. Black stated that Mrs. York has requested changes.

 

Mr. Kadlecek made the motion to approve the draft of the October 15, 2007 minutes with changes incorporated.  Mr. Wilkinson seconded the motion.  All were in favor. 

 

Schaus/MacQueen (247-2-20.212)

 

Mr. Schaus appeared before the Board.

 

Mr. Schaus stated that he purchased 42 acres in 1990.  Mr. Schaus stated that the land was subdivided into two lots, with his property being 14 acres and the other property belonging to his mother-in-law being 28 acres.  Mr. Schaus stated that his mother-in-law is going to be retiring and moving.  Mr. Schaus stated that he wants to move 24 acres of the 28 acres and make that part of his piece of property.  Mr. Schaus stated that the remaining 3.5 acres with the house would be sold.  Mr. Schaus stated that the remaining property, which would be his, has 200 feet of road frontage and 39 acres in the back.  Mr. Schaus stated that the property consists of wooded wetlands and he has no plans of further subdividing.  Mr. Schaus stated that he has had the land re-surveyed.

 

Mr. Black stated that the only issue that the Board has is with the zoning requirement pertaining to the pond and the rear property line.  Mr. Black stated that the requirement is 40-foot setback to the side yard and 50-foot setback to the rear yard.  Mr. Black stated that this is less than 50 feet and the Board cannot approve that.

 

Mr. Black stated that there are three choices for moving forward:

1.         referral to the ZBA;

2.         move the line so it is 50 feet from the pond; or

3.         fill in the pond.

 

Mr. Schaus stated that control of the back part of the property and the stream are important to him and it would be worthwhile to go to the ZBA for approval.

 

Mr. Black stated that the application before the Board cannot be accepted as a complete preliminary application because it lacks approval at this point and the Board is referring him to the ZBA.

 

Mr. Armer stated that if it was surveyed from the edge of the pond to the stream and it was found that there is 50 feet and it is documented on the map that would be accepted by the Board.

 

Mr. Schaus stated that the pond level changes a lot.

 

Mr. Black inquired if it was a dug pond.

 

Mr. Schaus stated that is was dug by Alan Grattidge.  Mr. Schaus stated that it was staked out at 40 feet but that year was very dry and a flood came and it washed away some soil and moved the pond’s edge back.

 

Mr. Black stated that the dimensions were needed on the map.

 

Mr. Black stated that if the ZBA grants a variance this would be an exempt subdivision.  Mr. Black stated that the Board would waive engineering review, Public Hearing and fees but it would need to be sent to the County for review as it is on a County Road.

 

Mr. Hodgkins inquired if the standard notes would need to be on the map. 

 

Mr. Black stated no but a signature block is needed.

 

Mr. Black stated that if the variance is granted then the Board would need an updated copy of the map and the decision of the ZBA.

 

Charlton Fire District #1/Van Guilder (247-2-14.11)

 

Mr. Rabideau appeared before the Board.

 

Mr. Rabideau stated that the Fire Department was looking for a new piece of land.  Mr. Rabideau stated that they had a location but a discussion was made that the location was not good for safety reasons so the Fire Department looked for a better place.  Mr. Rabideau stated that the Fire Department approached the Emerichs and they agreed to sell a 5-acre parcel at the corner of Charlton Road across from Peaceable Street.  Mr. Rabideau stated that the location would fit the needs of the Fire Department and the safety issues.  Mr. Rabideau stated that this location is as close to the village as they can get.  Mr. Rabideau stated that this is a good parcel for the needs of the new station.

 

Mr. Black stated that what makes this unique is that the specific intended purpose is to create a Fire Station and not a building lot.  Mr. Black stated that since the intended purpose is to build a Fire Station in order for the Planning Board to accept this, a site plan of the building is required.  Mr. Black stated that since the Board does not have a site plan now, the application is not complete at this point.  Mr. Black stated that since the purpose of the application is to build a Fire House then the Board wants to have a Fire House site plan review as part of the process.  Mr. Black stated that the Board would need details of the building and the paved areas and picnic grounds and whatever else is planned for the site.

 

Mr. Black stated that as the Board reviewed the contract between the Charlton Fire District and the Emerichs, it implies that the sale is contingent on getting the approval from the Town to subdivide and the site plan review of the building.  Mr. Black stated that it is also contingent upon securing the funding authorization from the Fire District itself to actually secure the funds necessary for the capital improvements to build a building.  Mr. Black stated that the latter one then would mean that the Board could approve the subdivision and approve the site plan of the building but approve it contingent on actually getting the proposal in front of the Fire District people who vote for the bond to authorize the funds to build the building. 

 

Mr. Rabideau stated that he does not think that was the intent.

 

Mr. Black stated that the only thing that would make that not so would be if the purpose of the subdivision was just to subdivide the land to sell it.  Mr. Black stated that if the Fire District wants to buy it, at some point in time later on, then it will come back for site plan review at the point in time when a building is being planned. 

 

Mr. Keniry inquired what happens if the applicant says they would like to pursue the subdivision approval because that is the first “domino” in the process for them to knock down and they understand that they can lock this parcel off from the mother parcel and then say maybe we’ll be back in a year or maybe we will not be back for the commercial site plan.

 

Mr. Rabideau stated that the intent is to get the five acres cut off first and then work on the site plan.

 

Mr. Keniry suggested getting a stance on where the applicant is.

 

Mr. Rabideau stated that he does not know the time frame.

 

Mr. Black stated that the approval of the subdivision is to the Fire District as the applicant, not the Emerichs.

 

Mr. Keniry stated that the approval is to the land.

 

Mr. Rabideau stated that as a Fire District, they are limited.  Mr. Rabideau stated that they cannot turn around and put a house there. 

 

Mr. Black stated that if the Board approved the subdivision, and for whatever reason the bond to get the fire house built isn’t approved by the Fire District, then there is no firehouse.  Mr. Black stated that at that point in time, according to the purchase agreement with the Emerichs, now the Emerichs could sell it as a building lot.

 

Mr. Keniry stated that is correct and the Fire District walks because they couldn’t satisfy their contingencies that were necessary for them to purchase the property.

 

Mr. Rabideau stated that this parcel is a very desirable building lot.  Mr. Rabideau stated that the Fire District is not buying it for someone to put a house there.

 

Mr. Black stated that since it is a domino effect that the efficiency of the process, combining the site plan review and the approval at the same time, is a more efficient process.

 

Mr. Rabideau stated that it is probably more efficient but the problem is the site plan would be costly.  Mr. Rabideau stated that the problem is the initial outlay of money.  Mr. Rabideau stated that the State requires that the Fire District not own two pieces of land.  Mr. Rabideau stated that there needs to be a simultaneous conveyance of the existing firehouse land and the piece of land for the new firehouse.

 

Mr. Black stated that this parcel does not appear to have issues.  Mr. Black stated that one question would be that a firehouse may or may not have the same water requirements and septic requirements as a private residence.  Mr. Black stated that normally a subdivision is based on private residence requirements.  Mr. Black stated that the Board would like to be sure that the requirements can actually be met.

 

Mr. Keniry stated that the applicant is suggesting that they are willing to take the risk that they could obtain final subdivision approval with no contingencies with this Board and have final subdivision approval and then ultimately walk away from their contract with the Emerichs because they fail to get site plan approval from the Board.

 

Mr. Rabideau stated that the intent is to forge ahead with this.

 

Mr. Black stated that the issues previously discussed would be part of the site plan review not part of the subdivision process.

 

Mr. Rabideau stated that the biggest possible issue is the water.  Mr. Rabideau stated that they have not yet done any test pits.

 

Mr. Black inquired as to the frontage across here.

 

Mr. Rabideau stated 305 feet.

 

Mr. Wilkinson made the suggestion that if Mr. Rabideau came before the Board just representing the Emerichs as just a subdivision and cut 5 acres off of their property and then the Fire District buys the property later the issues go away.

 

Mr. Rabideau stated that it was possible.

 

Mr. Wilkinson stated that then the site plan could be done later.

 

Mr. Keniry stated that the applicant just wants to pursue subdivision approval and get that behind them and then work on all of the dominos in order to get to a position where they satisfied enough contingencies that they would feel comfortable to close.  Mr. Keniry stated that if he understands it correctly, the applicant does not intend to take title until all of the contingencies of the contract have been met.

 

Mr. Rabideau stated that the main reason for this is that during the last vote the issue was raised that the Fire District was doing something on the sly.  Mr. Rabideau stated that if he came in just representing the Emerichs, it might make the Fire Department look bad.  Mr. Rabideau stated that the intent for this subdivision is strictly for a proposed  Fire Station.

 

Mr. Grattidge suggested adding the Emerichs to the application as an applicant together with the Fire District.  Mr. Grattidge stated that the Fire District is subdividing a piece of property for the Emerichs.

 

Mrs. Wood stated that the map does state a portion of lands of Dale and Wayne Emerich to be conveyed to the Charlton Fire District #1.  Mrs. Wood feels that captures the intent.

 

Mr. Grattidge stated that the applicant could be Charlton Fire District #1/Emrich.

 

Mr. Black stated that it is clear that the Fire District is the applicant.  Mr. Black stated that the map will ultimately be filed with the County as a piece of land to be subdivided and assuming that it is not beyond the realm of possibility that the Fire District may not go along with the funding to build a new firehouse and  therefore the contract doesn’t go through with the Emerichs and eventually the Emerichs land with a five acre lot which they want to sell.  Mr. Black suggested that it would be better to have the title be a portion of the lands of Dale and Wayne Emerich and not have the Fire District on it.  Mr. Black stated that there is no hidden agenda here because the application is clear and the Public Hearing is going to be clear.

 

Mr. Black stated that the Emerichs will be left with two tax parcels if they choose to continue to own it and not sell it.  

 

Mr. Rabideau gave suggestions of what the Emerichs could do with the land if the contract were to fall through with the Fire Station and the Emerichs were left with the 5-acre lot.

 

Mr. Black stated that if the intent of the applicant is to go through the subdivision process and get the subdivision approved first and then the Board should approve it as a subdivision referred to “as a portion of lands” and then the applicant can continue to be the Fire District and the Board proceeds as such.

 

Mr. Kadlecek stated that it was discussed that the Fire District did not want to hold two properties.   Mr. Kadlecek stated that they want to sell the other property at the same time that they purchase this property and cannot do that until it is subdivided.

 

Mr. Black inquired why not hold any property.

 

Mr. Rabideau stated that the Fire District did not want to be in that position.

 

Mr. Armer inquired if the Emerichs knew that if the subdivision is approved and the funding for the Fire Station is not approved that they are now stuck with two properties.  Mr. Armer stated that the contract is based on all of those contingencies.

 

Mr. Rabideau stated not for the bond to pass.  Mr. Rabideau stated that once they have subdivision approval and they meet the contingencies of the contract, they own the land.

 

Mr. Kadlecek questioned then the Fire District would be a stand-alone applicant for the site plan review and the Emerichs would not be a part of it?

 

Mr. Rabideau stated correct.

 

Mr. Black read from the purchase contract between the Emerichs and the Charlton Fire District #1 “the transfer of title of subject property is subject to condition: E. Municipal approval and bonding for capital improvements upon the subject property”.  Mr. Black stated that was a condition of sale on this subdivision.

 

Mr. Rabideau stated that he would have to speak to their attorney about that. Mr. Rabideau stated that is not the intent of it, that the intent is that if the Fire Station does not get the bond, they still own the land.

 

Mr. Black asked Mr. Rabideau if he understood that the site plan review would have to happen later on.

 

Mr. Rabideau stated yes.

 

Mr. Black stated that the application is complete.  Mr. Black stated that the Board has the short form EAF.  Mr. Black asked Mr. Rabideau to change the title of the drawing, deleting “to be conveyed”.

 

Ms. Szurek raised concern with the Emerichs being stuck with another taxable parcel of land if the deal falls through. 

 

Mr. Black stated that the Board could make a contingency approval that if the deal falls through then the approval of the subdivision is null and void.

 

Mr. Keniry stated that the applicant needs to file the mylar in order to get the sale complete.

 

Mr. Hodgkins suggested a lot line change if the deal falls through.

 

Ms. Szurek stated that if the Emerichs have an AG exemption and sell the land it does not stay AG then they will have to pay back the amount of taxes saved over the last five or six years.

 

Mr. Black stated that the Board will treat this matter as a subdivision of land.  Although the intent is for a fire station, the Board is not approving a firehouse in any way, shape, or form.

 

Mr. Rabideau stated correct.

 

Mr. Black stated that the Board will approve the firehouse after a site plan review, etc.

 

Mr. Rabideau stated correct.

 

Mr. Black asked Mr. Rabideau to have the drawing reflect a subdivision of a portion of the lands.  Mr. Black stated that the site plan review will happen separately if the sale proceeds and we are at that point.  Mr. Black stated that the site plan review will re-do application fees, park fees, engineering review fees, county review, SEQRA, another Public Hearing.  Mr. Black stated that it will start the process all over again.

 

Mr. Rabideau stated correct.

 

Mr. Wilkinson inquired if perc test results were needed for next meeting.

 

Mr. Black stated yes.

 

Mr. Rabideau stated he would have them.

 

Mr. Black stated that all of the notes are on the drawing.

 

Mr. Rabideau asked for clarification of the title.

 

Mr. Black stated “Lot 1 or “a subdivided portion of the lands”.

 

Mr. Black made the motion to accept the application as a complete preliminary application.  Mr. Kadlecek seconded the motion.  All were in favor.

 

Ms. Szurek inquired if the Board could make sure that the Emerichs know the tax liabilities they may incur as a result of this falling through.

 

Mr. Black stated that he would contact the Emerichs.

 

Mr. Black stated that a Public Hearing could be scheduled at this time for the January meeting.  Mr. Black stated that the application could be forwarded for engineering review and county Planning Board review.

 

Mrs. York inquired if a copy should go to the ECC.

 

Mrs. Black stated yes.

 

Mr. Black made the motion that the Planning Board be designated as lead agency status for the purposes of SEQRA.  Mr. Kadlecek seconded the motion.  All were in favor.

 

Mr. Black made the motion to schedule the Public Hearing for January 21, 2008 at 7:45 p.m.  Mr. Hodgkins seconded the motion.  All were in favor.

 

Mrs. York gave Mr. Rabideau the information for notifying the neighboring properties of the Hearing.

 

Mr. Keniry will publish the notice.

 

 

Heflin/Durst (255-1-40.1,41,43.1,43.2,43.3)

 

No one representing this matter appeared.

 

Mr. Black stated that there has been no action.

 

Zoning Administrator Report

 

Mr. LaFountain provided the report from October 2007 and reviewed it with the Board.

 

Mr. LaFountain stated that as of January 1, 2008 the report would be included in the package of information Mrs. York provides to the Board members.

 

Correspondence

 

Mr. Black stated that the annual Planning Board conference is January 30, 2008.  Most of the applications have been turned in this evening.

 

Mr. Black stated that he received the 2008 Budget from the Town but has not yet compared it to the one submitted by the Planning Board.

 

Mrs. Verola stated that is was basically the same.

 

Mr. Black stated that Mr. Keniry has sent notice to Ms. Nigriny regarding engineering fees owed.  Mr. Black stated that the fees were for work completed by Mr. McNamara before the denial of the application.  Mr. Black stated that Mr. McNamara has sent a letter to Ms. Nigriny to which he received no response.

 

Mrs. York stated that she has sent a copy of Mr. McNamara’s letter together with the bills of monies owed.

 

Mrs. Verola suggested sending a follow up letter.

 

Mr. Black asked Mrs. York to send another letter indicating that the charges billed are for work done as part of the subdivision review process done prior to the denial of the subdivision and prior to receipt of the lawsuit.

 

 

 

Town Board Liaison

 

Mrs. Verola had no report.

 

Mr. Black stated that there would be no meeting in December.

 

Mr. Hodgkins made the motion to adjourn the meeting.  Mr. Kadlecek seconded the motion.  All were in favor.

 

The meeting was adjourned at 9:00 p.m.

 

Respectfully Submitted,

 

 

Kimberly A. Caron

Recording Secretary