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Town of Charlton Planning Board Minutes 784 Charlton Road Charlton, New York 12019
Minutes of Planning Board Meeting – July 17, 2006
Acting Chairman Constance Wood called the meeting to order at 7:00 p.m. at the John W. Taylor Hall.
Present: Constance Wood, Acting Chairman, John Kadlecek, Mark Hodgkins, Jay Wilkinson, William Keniry, Town Attorney and Susan York, Planning Board clerk. Christopher Mitchell joined the meeting at 7:45 p.m.
AGENDA MEETING:
Mrs. Wood opened the meeting stating that there are two subdivision applications to review, Cuchelo and Casey. There is also a ZBA referral to review. Mrs. Wood stated that there would not be a zoning report tonight as Mr. LaFountain would not be present for the meeting. Mrs. Wood further stated that there would not be a Comprehensive Plan Committee report as there has been no activity.
Mrs. Wood advised that as there are four members present, there is a quorum for the meeting.
Casey (237.00-1-17.1 & 17.2)
Mr. Wilkinson stated that in reading the subdivision regulations, page 13, there are several items missing from the proposed drawings. Mr. Wilkinson stated that the drawings should state the zoning district, which is residential/agricultural. Mr. Wilkinson stated that the test pit information is also missing from the drawing. Mr. Wilkinson further stated that the wetlands delineation is not on the drawing. Lastly, the proposed housing and proposed driveway locations are not shown on the drawing.
Mrs. Wood stated that the applicant would need to be advised of the requirements for the drawing.
Mrs. Wood stated that there is a letter from the applicant stating that the DEC wetlands delineation was completed on June 27, 2006. The letter stated that the surveyor was not able to add the wetlands information to the map in time for the submission to the clerk.
Mr. Kadlecek stated that he would like to see the information given to Mrs. Casey from DEC.
Mrs. Wood stated that there is a letter from Michael McNamara dated July 11, 2006.
Mrs. York advised that Mrs. Casey owes the engineering escrow.
Mrs. York advised that Ms. Cuchelo has paid all fees.
Mr. Keniry stated that per last months meeting, Mr. Black had asked him to make an interpretation the subdivision regulations pertaining to percolation tests and report back to the board the findings.
Mr. Keniry stated that the question that was raised to consider was in relation to a specific section within the Zoning Ordinance pertaining to percolation tests. In relation to the issue that has been framed in the larger sense, the question is one of whether or not to require perc tests of applicants and at what stage or if at all, starting with that premise, where do we stand today. First we looked specifically at the section within the Zoning Ordinance that pertains to sanitary facilities and water wells and at the last meeting we were reviewing quotes from that section. The board was discussing how to potentially interpret it. Mr. Keniry’s recollection is that it is a matter of interpretation. Mr. Keniry stated that he thinks that he strictly construed it and literally construed it based on what he read and to some extent in all frankness he does not see a lot of room for interpretation. It is what it is. In that sense, the language is that the requirements with respect to perc tests “shall be binding upon applications for subdivisions, individual lots”. Mr. Keniry stated that in the first instance, “shall” does not give him a lot of comfort that there is a lot of discretion or a lot of room for interpretation, nor does “subdivision, individual lots”. If you go further into the bullet points within section B after it describes the nature of the perc test, it then says “any such lot having a percolation test greater than 45 minutes cannot be subdivided and cannot use a septic system for waste disposal”. Mr. Keniry stated that there is another sentence that says, “no building permit shall be granted for a lot for which the percolation test is greater than 45 minutes”. Mr. Keniry stated that there is another section that says, “These requirements shall not be subject to modification by variance”. Mr. Keniry stated that he has always retreated to that ambiguous language about substantial justice where every once in a while if there is some issue, you try to give somebody the benefit of the doubt if there is room for interpretation. Mr. Keniry stated that there is a provision in the ordinance that gives the Board that power, however, not that the Planning Board could be a zoning board of appeals. Mr. Keniry stated that his point in looking at it literally is it does not give him a lot of comfort in terms of there being a lot of room for discretion, so the Board is faced with a situation. Mr. Keniry ran through an example to demonstrate the problem - you have two brothers that have run an agricultural operation for 15 years and there is discord in terms of what their product is going to be. One brother is interested in produce and the other brother is interested in perennials. Neither brother is interested in living on the operation. Nevertheless, there are two brothers who own a piece of ground and they cannot get along so they come and ask the planning board to make peace in the family by helping them draw a line on their map to subdivide it. Mr. Keniry stated that then the Board will ask them to prove that it percs. The brothers are going to ask why the Board is making them do that. That is the issue that is confronting the Board. Mr. Keniry stated that he thinks that this was very well intentioned and intended to protect new folks coming to town as well as existing residents so that the Board would not be saddled with problems that are created by lots that cannot perform. The reason why it is being framed this way is in the end, in talking with Mike McNamara, it is not really an engineering call, and it is not a legal call. Mr. Keniry did look at the usual towns that he typically looks at, Malta, Clifton Park, Colonie, Galway, and no one seems to do it the way Charlton does it. Mr. Keniry stated that the Board has heard about that from time to time with applicants where they come in stating that this is the only town that does it exactly that way. The point is that when an applicant comes in and says the way Charlton does it is unique, that does not prove that the way Charlton does it is wrong. Mr. Keniry stated that he has checked with DOH and DEC to see if he could get some additional guidance at a statewide level. Mr. Keniry stated that in terms of the local level there is no guidance. They will look at raised bed systems and typically most similarly situated towns are dealing with the issue of the perc tests at the building permit level. Mr. Keniry stated that the Board has a practical understanding that it is sort of a buffer between something getting built and the town having an ultimate control to protect the new citizens and the old so that the Board is not saddled with problems. In the end, in saying that it is not an engineering decision and it is not a legal decision, Mr. Keniry can speak for Mike McNamara because he received Mike’s permission, there is nothing wrong with the way that the Planning Board understands the intentions. Mr. Keniry stated that what the Board may wish to consider is a suggestion that this be set up so that there is a discretionary element to it. Mr. Keniry stated that in some cases the Board may wish to say to the applicants “this is a big project, and in some towns is a major subdivision and although we could not find it in their regulations, perc tests are there in the checklist if you have a 25 lot subdivision”. Mr. Keniry stated that based on Charlton’s town designated engineers, is that they would like to have that ability and the control on a big subdivision to check it out a little bit and see if the engineering is really there for the project. At a policy level there are a variety of considerations, for instance, we do not want to waste an applicant’s time or an applicant’s money. We know that the applicant spends a lot of money on all of these maps and we want to be as sensitive to that as we can. Mr. Keniry stated that to some extent when you say to an applicant on the front end “does it perc” and their reaction is “why pester me with that”, the Planning Board could actually be saving the applicant a whole lot of pain in the end.
Mrs. Wood stated that many years ago, lots that were given to a daughter since the farmer went out of business and they tried to put in five wells and could get nothing. Here is something that you pay taxes on but you cannot build on it. Mrs. Wood stated that she thinks that Planning Board should have sale lots contingent upon finding potable water because in Charlton potable water is a problem. Mrs. Wood stated that people from a city suburban background are used to public water and public sewers and they have no idea what they are getting into. They purchase a piece of property and then they cannot build on it.
Mr. Keniry stated their (his and Mr. McNamara’s) general suggestion is that at a policy level the Planning Board should consider it. Mr. Keniry stated that the Planning Board would need to decide in what format to consider it, if it is a smaller committee or if it is the board getting together in some manner to have some discussions. Mr. Keniry stated that from their perspective, looking at the problems certainly they can suggest to the Planning Board as professionals that the retention of the discretion is certainly prudent. Mr. Keniry stated that neither of them concluded that on its face would they just recommend that the Board throw it completely out. Mr. Keniry stated that the Board certainly could and neither of them would have a problem because they know that the Planning Board will have a practical backstop with the Zoning Administrator who will perform that check. There are some instances where people have closed and sold, the deal is done, the checks cleared and they have the deed recorded at the County and then they are in with someone other than the seller of the land, with a contract builder, and they are trying to make an application for a building permit and they find that there is no water. Mr. Keniry stated that he is not saying that the situation is something that the law imposes a burden on the Planning Board that Planning Board has to remedy. One practical point that Mr. McNamara makes is that they spoke specifically about the text. Mr. McNamara recalled to Mr. Keniry a conversation with a prior chair involving the calendar where there is a 12-month process and all parties’ work as hard as possible to keep people going through the process. The consideration potentially here is that if it does become mandatory there is the possibility that the 12-month process could essentially be a 4-month process because people cannot do the tests in a generally accepted manner based upon the weather. Mr. Keniry stated that he discussed that with Mr. McNamara, DEC and DOH. Mr. Keniry stated that what is essentially a $500.00 to $800.00 proposition, and they can do the tests, but you would have to have a sub specialist in soil engineering take them back to the lab. The cost could potentially be in the range of $2,000.00. So you take a $500.00 to $800.00 proposition for a test and turn it into something that could be very significantly burdensome potentially for an applicant. Mr. Keniry stated that he thinks Mr. McNamara is generally satisfied that if the Board went the other way and left it at the building department level, then from an engineering standpoint, he wouldn’t perceive that he was at a loss. Mr. Keniry stated that on the other hand, he thinks it is fair to say that their consensus recommendation is to consider maybe relaxing this so that there is a bit of discretionary element so that the Board could in some instances mandate it and in other instances would not. Another point on the legal side is that very often the Board has had discussions of this nature and members of the board are very concerned about something that applicants come in and complain about all the time and that is precedent. The Board always works on the premise that you treat everybody fair and the process in inherently fair. Mr. Keniry stated that he does not think that there is an inherent unfairness because that is what the Board is reviewing here to make individual determinations on projects. Mr. Keniry stated that he does not believe the Board is going to run into a problem with someone making a legitimate claim of some inherent unfairness. Mr. Keniry stated that it is precisely the opposite, it is to have discretion so that the Board can exercise some reasoned judgment if there is some basis on which it can be reasonably concluded that there may be an issue. Mr. Keniry stated then he does not think that the Board could be fairly criticized for mandating an applicant to do a perc test on the front end. Mr. Keniry stated that the answer is that he does not have some answer for the Board other than that general recommendation. Mr. Keniry stated that he does sincerely believe that it is a policy matter and that at some point it needs to be considered amongst the Board members to decide how and what the Board wants to do.
Mr. Kadlecek inquired if every proposed property must have a perc test according to the regulations.
Mr. Keniry stated that the way it is written, that is the interpretation of what it says. Mr. Keniry stated that he spoke a little bit with Mr. McNamara about historically how things were done and thinks there has always been a deliberate effort to try to save applicant’s money in every instance where possible. Mr. Keniry stated that he thinks inherently that is the correct approach. Mr. Keniry stated that on the other hand, he thinks that there are instances where that can create problems as well. The engineers, as Mr. Keniry understands it, have tried to do their best working with the constraints of economics to exercise some reasonable decision making along the way. Mr. Keniry stated that he talked to Mr. McNamara specifically about what would he do – would he go out and personally witness every single one and the answer is that it is not practical, it is not feasible and the answer was no that is not a workable solution. From an engineering perspective, they looked at it as it was overly burdensome and inevitably that led the conversation to the point that in these instances the Board is relying on the certifications of the professionals who present those materials and that is why the procedure is set up in the manner that it is. Mr. Keniry stated that Mr. McNamara seems to be quite content with the 48-hour notice and a phone call to the town so that the town at least has the right and the ability. The impression was with respect to some of these particular tests they wanted to reserve the right that in the event that there is a particular question or a particular application or a particular project that it wouldn’t just be somebody from the code enforcement office but the town designated engineer could go on an inspection.
Mr. Kadlecek stated that that contradicts the intent that all of them shall be inspected.
Mr. Keniry stated witnessed.
Mr. Kadlecek stated that it is not being done now.
Mr. Keniry stated that perhaps there are some diversions.
Mrs. Wood inquired as to the cost analysis; the amount of up to $2,000.00 - is that for a more detailed substantive perc test.
Mr. Keniry stated that there were two things that he and Mr. McNamara had considered, they considered in the first instance the typical perc test using the typical professional. Mr. McNamara estimated that it would be approximately $500.00. Mr. Keniry stated that if you confined the season and said it had to be with a sub specialist’s soils engineer taking it back to the lab, in some optimal conditions, Mr. McNamara estimated that it could be $2,000.00 for the test. Mr. Keniry stated that he assumes that could also escalate based on the number of instances where tests have to be conducted on a particular piece of property. Mr. Keniry stated that Mr. McNamara told him that it could well happen that someone has to perform three to five tests and suddenly it is a fairly expensive proposition.
Mr. Keniry stated that he is trying to present this in a manner that is as balanced as can be and he feels that it literally says what it says – there is not room for interpretation.
Mrs. Wood inquired in the example given of the 100 acres with the two brothers where they are going to split the land 50/50, the Board asks them to do the perc tests on land that they have no intention of building on and only farming. Mrs. Wood stated that would be where we really run into a problem. Mrs. Wood suggested that the Board think about the information presented by Mr. Keniry and then go back and discuss it again.
Mrs. Wood inquired as to what page number the information is on in the Zoning Ordinance.
Mr. Keniry stated page 17.
The meeting was closed at 7:30 p.m.
BUSINESS MEETING
Opened at 7:30 p.m. with the Pledge of Allegiance.
Minutes
Mrs. Wood stated that the June 19, 2006 meeting minutes would need to be approved.
Mr. Kadlecek made the motion to approve the June 19, 2006 meeting minutes incorporating Mrs. York’s changes. Mr. Hodgkins seconded the motion. All were in favor.
Cuchelo (235.00-1-33.1)
Mrs. Wood stated that this is property located on Route 147. Mrs. Wood asked Ms. Cuchelo to approach the board to explain her proposal.
Ms. Cuchelo approached the Board.
Ms. Cuchelo stated that the idea was to subdivide one property into four parcels. Ms. Cuchelo stated that these three parcels up here on the south side have 200 feet of road frontage, the one up here has over 200 feet road frontage and it goes on both sides of the property of Zelliger. Ms. Cuchelo stated that they have drawn the proposed housing and the driveways as was discussed at the pre-application meeting. Ms. Cuchelo stated that is generally what the application is for.
Mrs. Wood asked for comments from the board.
Mr. Wilkinson advised that there is a letter from Mike McNamara dated July 11, 2006 with comments. A copy of the letter is annexed hereto as Attachment 1.
Mrs. Wood inquired if Ms. Cuchelo received the letter.
Ms. Cuchelo stated yes. Ms. Cuchelo stated that she has another map that those changes have been made. The map is not yet complete but those changes have been made exactly, precisely as Mr. McNamara has specified. One comment was the right to farm note, which is stated exactly as in the letter. Down here there is a schedule of the cross section for the special application for the extra long driveway. Ms. Cuchelo stated that the map she has was just done today. The Board reviewed the new map provided by Ms. Cuchelo that was not yet complete.
Mr. Hodgkins suggested updating the map to show the revision dates.
Ms. Cuchelo stated that she has not finished working it with the surveyor yet but agrees with Mr. Hodgkin’s suggestion.
Ms. Cuchelo stated that the third item was the boundaries that should total 100 feet for building. This one here shows that we have it at 50 foot so in total it is 100 feet but the letter does state that whatever it exactly will be then the revisions will be made on those lots. So in total the setbacks are 100 feet, which is what the zoning requirements are.
Mrs. Wood asked Ms. Cuchelo to repeat what she had just said, as she did not understand what Ms. Cuchelo was saying.
Ms. Cuchelo stated that the zoning setbacks need to be 100 foot total, at least 40 foot on one side and this one here the old one shows 40 foot so in total was 80 foot and the letter stated that he wanted the 100 in total.
Mrs. Wood stated so what you have done is then shrink in the building envelope.
Ms. Cuchelo responded yes. It still could be 40 feet on one side but in total it needs to be 100 feet.
Ms. Cuchelo stated that was it. Ms. Cuchelo stated that we talked about the road frontage, this continuous road frontage, for lot number 4 but we had discussed it in the pre-application meeting and so that had already been discussed.
Mrs. Wood stated that it is an issue.
Mr. Wilkinson stated that Mr. Black suggested that you could do the road frontage on two sides for a total of 200 but the review by our town engineer says that according to the ordinance it has to be continuous.
Mrs. Wood stated that it would require going to ZBA.
Ms. Cuchelo stated that she remembers the conversation well. We had talked about that and he said no, if it was 200, even though it went around, he said we would not have to go to ZBA. He suggested that at that point the driveway come up in this way and he said that would be acceptable.
Mrs. Wood inquired if any of the Board members had a copy of the ordinance and was able to find the page pertaining to the continuous uninterrupted width of a lot language.
Mr. Wilkinson stated that he spent a considerable amount of time reviewing the ordinance and was unable to find the language.
Mrs. Wood inquired if Mr. Keniry had any comment.
Mr. Keniry responded no. Mr. Keniry stated that he would prefer to speak to Mr. McNamara directly.
Mrs. Wood inquired if there was some reason why the lot lines are in the configuration that they are.
Ms. Cuchelo stated that she was trying to have something that would divide it equally and have usable access in the back area. She does not believe that it would have been very pretty to have something straight back, these lines come straight back, just it is more usability to users for that field.
Mr. Guy Mitchell stated that it also makes it close to equal acreage.
Mrs. Wood inquired as to where the stonewalls were located.
Ms. Cuchelo stated that some of them are up against what is shown.
Mrs. Wood stated because that’s always an interesting situation. We’ve actually had somebody come in and have to do a lot line change as a result of that and so it is interesting to know because if you are going through and you are cutting odd angles it makes people assume.
Ms. Cuchelo stated that she could understand if it’s close but thinks that some of these, there are some that run across, back this way. This one, they don’t seem to run to square. She thinks that might be a difficult application in this one.
Mr. Hodgkins inquired if they are supposed to be shown.
Mrs. Wood responded no, but a lot of times we try to encourage people to run boundary lines with the stone walls. Mrs. Wood stated that we have required it for some people in the past only because it becomes a problem. People assume those lines are the boundary.
Ms. Cuchelo stated that there is going to be markers for the boundaries at the point where the boundaries are going to go, in the corners, here and like at this point here and this point here. So I don’t think that it will be obscured.
Mr. Wilkinson stated that in the little overview here, it is lacking the requirement to show the distances to the existing street and intersection because you don’t have an intersection that far away.
Mrs. Wood stated that it should be shown as a block.
Mr. Wilkinson stated that it should be shown as a block where the subdivision is here, the distance to the corner.
Mrs. Cuchelo responded ok.
Mr. Wilkinson showed Ms. Cuchelo an example showing a site location which has to have a scale on it and the requirements that are subdivision regulations design and construction standards on page 12, the drawing requirements.
Mr. Kadlecek stated that he is uncomfortable with the shape of Lot 4.
Mrs. Wood stated that she agrees and feels this needs to go to ZBA.
Mr. Keniry stated that lot frontage is defined on page 8 of the Zoning Ordinance book.
Ms. Cuchelo stated that it was a consideration and that is why they came to the pre-application conference to discuss that to bring it up to the ZBA. We were assuming that would be the course but Mr. Black said it wasn’t required.
Mr. Wilkinson pulled the page from the April 17, 2006 Planning Board minutes pertaining to the Cuchelo pre-application conference.
Ms. Cuchelo stated that she has also seen the minutes from that meeting. Ms. Cuchelo stated that at the end of the meeting she knows it was confirmed that it would indeed be OK and he did confirm it again twice specifically.
Mrs. Wood inquired that it would have to go to ZBA.
Ms. Cuchelo responded no, that it was appropriate.
Mrs. Wood stated that Mr. Black could not override the Zoning Ordinance.
Ms. Cuchelo stated that she knows that.
Mrs. Wood read from page 17 of the minutes “Mr. Black stated that this Planning Board could not accept the application for the four lots. The Planning Board could accept these three (showing on drawing). This lot as a stand-alone lot (showing on drawing) and this configuration is not acceptable without a ZBA authority to do so. Mr. Black stated that the ZBA would ask for Planning Board opinion. Mr. Black stated that the application as is would require a location of a house back behind this house and therefore a long driveway that has to meet very stringent requirements”.
Mrs. Wood stated that she agrees and has large problems with Lot 4.
Mr. Kadlecek stated that if they change to 3 lots they can avoid ZBA.
Ms. Cuchelo stated that these lines here originally, on the map that she brought in, came more like this and Mr. Black suggested that they come over here and do the driveway over here in order to keep these equal. Ms. Cuchelo stated that she remembers the conversation. Ms. Cuchelo stated that was the reason for configuration. Ms. Cuchelo stated that now this one here has a nice part of land here and her original configuration would have been agreeably, would have been something like this. Ms. Cuchelo stated that she guesses that the lay of the land really does suit this sort of configuration. Ms. Cuchelo stated that she knows on the map it kind of strikes you as odd.
Mrs. Wood suggested that the Planning Board walk the land.
Ms. Cuchelo stated that the other alternative is that if they made it more square it would be awkward she thinks. It would be just in an awkward position to have a piece of property that goes like this or bowling lot alley. This is the drive area.
Mr. Hodgkins inquired as to how well the property is marked out there.
Ms. Cuchelo stated that they have those fluorescent markers around.
Mr. Wilkinson stated that from the road it looks staked.
Ms. Cuchelo stated that they use those for doing the markers but those are not actual stakes. They got the corners in. Those along the front are reference points.
Mr. Wilkinson stated that there is not much wiggle room, you will have to go to ZBA for the fourth lot.
Mrs. Wood stated that she wants to walk the property because she is concerned with the angles. Mrs. Wood stated that she prefers to see clusters. Mrs. Wood stated that in speaking with the chairman of the comprehensive plan, they discussed that this is a prime example of when you want flexibility in planning you don’t have it. If you went to five lots, we could require a cluster subdivision. We wouldn’t require it but we could say we want to see a cluster subdivision.
Mrs. Wood stated that the Planning Board needs to take lead agency status at this meeting.
Mrs. Wood inquired if Ms. Cuchelo would give the Planning Board permission to walk the land.
Ms. Cuchelo responded yes.
Mr. Hodgkins inquired if the Board needed more clarification from Mr. McNamara regarding the continuous uninterrupted width of the lot.
Mrs. Wood stated that Mr. McNamara’s letter states that lot 4 does not meet the definition.
Mr. Mitchell stated that Mr. Black may have misspoke.
Mrs. Wood stated that the section of minutes that was read stated that at the end of the pre-application conference Mr. Black referred Ms. Cuchelo to the ZBA.
Ms. Cuchelo stated that she has records of what Mr. Black said specifically.
Mr. Guy Mitchell stated that Ms. Cuchelo came to the Planning Board to get a denial so that they could go to the ZBA three months ago and this was an acceptable plan that Mr. Black wrote out and Ms. Cuchelo spent a lot of money. Mr. Mitchell stated that Mr. Black stated that this would work out. Mr. Mitchell stated that this is very unprofessional.
Mrs. Wood stated that she cannot respond to that. Mrs. Wood stated that she was unaware that Ms. Cuchelo was before the Board in May.
Mr. Guy Mitchell stated that it was two months ago that Ms. Cuchelo was before the Board.
Mrs. Wood clarified that the pre-application conference was in April.
Mrs. Wood asked for a motion for the Board to take lead agency status.
Mr. Christopher Mitchell moved that the Planning Board be declared as lead agency status for the purposes of an unlisted action under SEQRA. Mr. Kadlecek seconded the motion. All were in favor.
Mrs. Wood referred Ms. Cuchelo to the ZBA or stated that she could change her proposal to three lots.
Mr. Keniry requested a copy of the revised map for his records.
Ms. Cuchelo stated that the map is not complete as there are adjustments that still need to be made. Ms. Cuchelo gave Mr. Keniry a copy.
Mrs. York will draft the letter to Maggie Schmidt, Chairperson of the Zoning Board of Appeals for the referral.
At the end of the meeting the Board revisited the Cuchelo application for further discussion.
Mrs. Wood inquired where the Board would like to go in the letter to the ZBA since they do meet before the next Planning Board meeting.
Mr. Hodgkins suggested putting in the points made by Michael McNamara in his letter of July 11, 2006, specifically the last comment.
Mrs. Wood suggested annexing a copy of Michael McNamara’s letter.
Mr. Keniry stated that in this instance, we have an applicant that is going to make an application for a variance so the Board thinks at this point.
Mrs. Wood stated that the Board is not certain that the applicant will apply for the variance. Mrs. Wood stated that if the applicant applies for the variance, the ZBA will meet before the next Planning Board meeting.
Mr. Keniry inquired why doesn’t the applicant just simply frame the issue from the applicant’s perspective. Mr. Keniry stated that the ZBA has the power to do, in a case like this, potentially two different things: 1) they say its OK by granting the variance, if that is what they choose to do OR alternatively 2) ZBA has the unique power as they can interpret by application the rules to the circumstances and give a ruling by way of an interpretation. Mr. Keniry stated that that could absolve the circumstance from requiring the variance. Whichever way it goes, to some extent that is the applicant’s choice. In all frankness, the applicant might consider asking for both and say OK ZBA you tell me whether or not this rule applies in this circumstance and if the ZBA determines that in fact it does then grant me the variance for relief.
Mrs. Wood inquired that once the applicant is granted the variance, does the Planning Board have to honor the decision.
Mr. Keniry stated that the Planning Board will have to honor or obey.
Mr. Kadlecek stated that the Planning Board would not have to grant the subdivision.
Mr. Keniry responded that the Planning Board still has all of its powers.
Mr. Kadlecek stated that the applicant can’t use the ZBA area variance as an issue.
Mr. Keniry responded that was right, the Board would then accept the variance on its face as essentially compliance. Mr. Keniry stated that non-compliance would not serve as a basis for denial with respect to Lot 4.
Mrs. Wood stated that Maggie Schmidt has requested that Mr. Black forward a letter citing Planning Board’s viewpoint on the application.
Mr. Mitchell stated that the ZBA wants Planning Board’s comments on the situation. Mr. Mitchell stated that it is kind of being done backwards, we’ve already looked at it and they have already wasted another two months.
Mr. Kadlecek suggested if the applicant applies to the ZBA, the Board could put together a letter after ZBA has received the application.
Mr. Keniry stated that the applicant may decide to change their proposal.
Mr. Kadlecek stated that the Board should wait until an application has been received by ZBA.
Mrs. York stated that ZBA usually gives referrals to the Planning Board. Mrs. York stated that Mrs. Schmidt is always looking for a denial letter.
Mr. Mitchell stated that this is a 70-acre parcel that could be subdivided into 15 lots. It would be better for the tax base to put a few more units in there.
Mr. Keniry stated that they have a copy of Mr. McNamara’s letter. The applicant did not contact the Board or address the circumstance and then the applicant came to the Board on what they thought Mr. Black said. Mr. Keniry stated that he asked the applicant if John Gay considered the comment from Mr. McNamara. Mr. Keniry stated that Ms. Cuchelo responded that Mr. Gay did consider it. Mr. Keniry stated that if Mr. Gay had considered the comment he would of contacted Mr. McNamara for a meeting of the minds. Mr. Keniry stated that the applicant was here on April 17, 2006 for concepts, which is just a discussion. Mr. Keniry stated that the legal significance is nothing and to comment and to react in that way is not a fair approach to the problem. The problem could have been approached in a much more problem-solving manner. Mr. Keniry stated that in fairness the Board does not know how the applicant is going to resolve the problem she has on the map, as it seems obvious that they did not speak to Mr. McNamara regarding the comment letter. Mr. Keniry stated that the Board is well within province to wait to see what the applicant does.
Mr. Kadlecek stated that if the applicant does apply, the Board can react.
Mr. Keniry stated that if the Board hears that the application was filed with the ZBA there is nothing wrong with putting in an advisory submission.
Mrs. York stated that Mr. Black suggested having a shared driveway between the horseshoe lot and the next one over and if by giving road frontage on both sides of the Zelligers, then it meets the 200-foot road frontage.
The Board agreed that Mr. Black did suggest that option to Ms. Cuchelo.
Mr. Mitchell stated that the applicant took what Mr. Black said and took it as acceptance. Mr. Mitchell said the applicant came to the Board as a preliminary to see if it was going to be denied and took it as the Board would allow the proposal as presented. Mr. Mitchell suggested that the Board not discuss things until they have a legal lot. Mr. Mitchell stated that the applicant should have gone to ZBA first.
Mrs. York stated that she thought the lot was legal according to what Mr. Black told the applicant.
Mrs. Wood stated that the Board can wait to see how the applicant proceeds. Mrs. Wood stated that if they want to go before the ZBA in August, then they have to have the application in by next Tuesday.
Mrs. York stated that the Board should give Mrs. Schmidt a heads up.
Mr. Keniry stated that, as an example, he runs applications concurrently where he files it with the ZBA at the time he starts the subdivision and tries to work through the Planning Board level at the same time he is working through the ZBA. The idea in mind is that if it is a more complex project, he will still be working with the Planning Board and the ink will long since have been dry on the ZBA decision. Mr. Keniry stated that it is entirely up to the applicant to decide how they want to process approvals on their own.
Mrs. Wood stated that the Board will wait and see. Mrs. Wood inquired how the Board would know that an application has been filed with ZBA.
Mrs. York stated that the Board usually receives a copy of the application. Mrs. York stated that Mrs. Schmidt should get the heads up that the Board has seen the application for subdivision at the July meeting together with a copy of Mr. McNamara’s letter.
Mrs. Wood stated that Mr. LaFountain commented at the pre-application conference about the 133 feet which is on the north side of this acreage is located in the blind spot at the end of Eastern Avenue where there have been a couple of accidents.
Mrs. Wood stated that she would like to walk the property because she is concerned about stonewalls. Mrs. Wood stated that any other Board members would like to go are welcome to join her. Mrs. Wood stated that she is very familiar with the creek bed because that is right on her property. The land next to it, the Gold’s land along the Alplaus Creek, is in conservation easement.
Mr. Kadlecek and Mr. Wilkinson stated that they would like to walk the property.
Mrs. Wood stated that she would contact the Board members so they can walk the property together.
Mr. Mitchell inquired if the Board was going to keep doing the work on applications where the applicant needs to be referred to ZBA. Mr. Mitchell stated that at the pre-application conference the applicant may get the idea that the Board is going to approve it when it does not met the zoning. Mr. Mitchell stated that if the Board cannot approve the application, talking about it and getting the applicant to go in that direction, the Board should be more careful.
Mr. Kadlecek stated that there are real problems that the Board sees and the applicant should be aware of that.
Mr. Mitchell stated that here the applicant has incurred the engineering costs on a piece of property, which they hope to be able to build on.
Casey (237.00-1-17.1 & 17.2)
Mrs. Casey approached the Board.
Mrs. Casey paid the engineering escrow of $500.00
Mrs. Casey stated that Lot A and Lot B share the entry of the driveway. The curb cut is there and then they split.
Mr. Kadlecek clarified that the Planning Board considers that paired driveways.
Mrs. Wood stated that she remembers Mrs. Casey voicing concern about one person buying and then putting in multiple houses. Mrs. Wood inquired what Mrs. Casey was doing to prevent that.
Mrs. Casey stated that she made it only 999 feet; that was preventing it from putting four or five in.
Mrs. Wood stated that Mrs. Casey could also put a deed restriction that says no further subdivision.
Mrs. Casey stated that she was unsure about that. Mrs. Casey stated that she was not sure someone would buy them all and she had been thinking about not selling them all as one.
Mrs. Casey stated that she personally asked DEC about the crossing and the representative stated that would not work. Mrs. Casey stated that they do not issue permits to cross the wetland area when there was buildable area in the front. Mrs. Casey stated that if the wetlands had been in the front that would have been a different issue.
Mr. Mitchell stated that DEC tried to avoid crossings if they can get away from it.
Mrs. Casey stated that the DEC representative offered to come to the Planning Board meeting.
Mr. Mitchell stated that the suggestion was that there might be other areas that it would be desirable to do.
Mrs. Wood inquired as to how quickly the surveyor was going to get the wetlands delineation on the map.
Mrs. Casey stated that she had a map with the wetlands delineation on it. Mrs. Casey stated that she was not able to get all of the information in on time.
Mrs. Wood stated that there are other things also missing from the map.
Mrs. Wood stated that the proposed house locations with driveways must be shown.
Mr. Wilkinson stated that the zoning district should be on the map and the test pit locations with test pit information also should be shown on the map. Mr. Wilkinson stated that the distance from the pond to the lot should also be shown.
Mr. Mitchell inquired if the pond was still there.
Mrs. Casey responded yes but it was shallow.
Mr. Mitchell stated that there may also be a pond behind it.
Mr. Wilkinson stated that the tax map information and the zoning regulations should be shown in the block.
Mrs. Wood read comment number 1 from Mr. McNamara’s letter of July 11, 2006. A copy of the letter is annexed hereto as Attachment 2. The comment calls for the zoning district and bulk schedule parameters for parcel area and setbacks be listed on the subdivision map.
Mrs. Wood read comment number 2 from Mr. McNamara’s letter of July 11, 2006. The comment states that a note on the plan correctly states that DEC wetlands are indicated on the NYS Article 24 Wetlands map. The wetland boundary should be transcribed from the DEC maps and added to the subdivision plan along with the 100-foot setback. Although the wetlands will be a significant encumbrance on Lots A, B and C, each lot will still easily accommodate a home with a well and septic system.
Mrs. Wood stated that the distance to Root Road should be in the small block map because it is a reference point.
Mr. Hodgkins inquired if this application was to be referred to the County for approval.
Mrs. Wood responded yes.
Mr. Keniry stated that it should be sent now.
Mr. Mitchell stated that the application could be moved forward on the contingency of county approval and a Public Hearing could be scheduled.
Mrs. Wood stated that the County Planning Board’s August meeting would precede our next meeting.
Mr. Kadlecek inquired as to why the lots were narrow.
Mrs. Casey stated that she was trying to even the lots so that they were the same acreage. Mrs. Casey stated that the surveyor came up with it.
Mr. Hodgkins inquired if the other side of the ridge was wooded.
Mr. Mitchell stated that the other side of the ridge is wooded.
Mrs. Casey provided an aerial photo for the board to review.
Mrs. Wood stated that the Board needs to take lead agency status and send the application to the county.
Mrs. Wood reviewed with Mrs. Casey the Board’s revisions to the maps. The Board would like to see the proposed house locations and driveway locations, perc test results, zoning district, distance from Root Road on site location map, tax map information and the setback from the pond.
Mr. Wilkinson inquired if that was the tree line.
Mrs. Casey responded yes.
Mr. Wilkinson stated that sometimes on a stonewall there is not any distinguishing marks to show what is on the subdivision so they will put a large tree to distinguish a location. Mr. Wilkinson inquired if there were any large trees there.
Mr. Mitchell responded no.
Mrs. Wood inquired if there was a stonewall.
Mr. Mitchell showed the stonewalls on the drawing.
Mr. Wilkinson moved that the Planning Board be designated as lead agency status for the proposed action and it is an unlisted action under SEQRA for the Casey subdivision on Sweetman Road. Mr. Kadlecek seconded the motion. All were in favor.
Mrs. Wood stated that the Public Hearing would be scheduled for the August 21, 2006 Planning Board meeting at 7:45 p.m. Mrs. Wood stated that the Board would need copies of an updated map with the corrections to Mrs. York.
Mrs. York stated that she would be in the Town Hall tomorrow at 7:00.
Mr. Keniry advised Mrs. Casey that the Board would publish notice of the Public Hearing.
Mrs. Wood stated that Mrs. Casey would have to notify the neighboring property owners. Mrs. York gave Mrs. Casey an envelope with blank post cards and instructions for this notification process.
Town Board Liaison
Mrs. Sandy Verola stated that the escrow accounts have been resolved. Mrs. Verola stated that Mrs. York and Mrs. Hanley have been working on a system so that there will be no future problems. Mrs. Verola stated that checks went out to people due a refund. ZBA Referrals
Doman (256.10-2-22)
Mrs. Wood asked for comments.
Mr. Wilkinson stated that he took a ride by there. Mr. Wilkinson stated that it would have been nice if they had given us a sketch of the plot plan because as you look at the house and you look at the road, the house appears to set parallel with the road as you can see from the little sketch that they included. Mr. Wilkinson stated that there is a split rail fence that goes between number 3 and number 5 and the fence is very close and it is hard to tell how close because there are shrubs there at the back of where this blacktop area is which looks to be about 10 feet over. Mr. Wilkinson stated that he would like to know where the back corner is and how it is going to look. Mr. Wilkinson stated that the back corner post is close to the fence.
Mr. Mitchell stated that it is within 5 feet that is why it went to ZBA.
Mrs. York stated that the width of the lot is less than the 105 feet of diagonal road frontage that shows on the copy of the tax map that was provided with the application (implying that the width to accommodate the house, carport addition and the setbacks is less than 105 feet).
Mrs. York stated that the Board’s letter could call attention to it and state no comment.
Mrs. Wood stated that she is concerned with the rear corner.
Mr. Hodgkins stated that the Board could suggest submittal of a plot plan with the proposed add on.
Mrs. Wood stated that the Board would encourage the ZBA to get the plot plan.
Mrs. York will send Mrs. Wood the draft of the letter before it is sent.
Zoning Report
Mr. Dave LaFountain, Zoning Administrator, was not present for the meeting and no report was presented.
Comprehensive Plan Report
There was no comprehensive plan report as there has been no activity.
Correspondence
Mrs. York stated that the Board’s procedure for Gazette Notices has been to obtain three original copies of the Public Hearing notice. Mrs. York stated that someone at the Gazette cuts out the notice, pastes it on paper, and discloses that they are verifying that that was truly published in the Gazette on a certain date and acknowledges it. One copy is put into the Town Clerk’s records along with all Public Hearing notices, one goes to the Planning Board and Mr. Black verifies it at the meeting that it has duly been published and then to the Planning Board filing cabinet and one goes with a voucher to pay the Gazette. Mrs. York advised that the charge has increased to $5.00 for each additional copy. Mrs. York stated that the Gazette will allow one at no extra charge.
Mrs. Wood inquired why the Board could not make their own copies.
Mrs. York stated that the Board could but then it is not the same as the original.
Mr. Keniry stated that he wanted to make sure that if the Planning Board changes their procedure for originals that he still receives his original copy. Mr. Keniry stated that he responded to the e-mail immediately because he is concerned that the person who comes to the next months meeting and says, “you approved a subdivision last month and I have all of these issues and you never gave us notice”. Mr. Keniry stated that he wants to always be able to prove the fact that the notice was done. Mr. Keniry stated that it is not good enough to have a photocopy from his perspective. It is not good enough to have the friendly conversation with the Gazette requesting the affidavit. Mr. Keniry stated that the reason for the acknowledgement is to prove that it is sworn under oath and it is the person who is publishing it swearing that they did it. Mr. Keniry stated the proof is what the legal department needs to protect the Board. Mr. Keniry stated that it is a policy decision to take two instead of three. Mr. Keniry stated that it is good practice to have one available at the clerk’s office so if someone walks in they see it was published. Mr. Keniry stated that if the Board decides to cut it from the official file, then it is a policy decision.
Mrs. Wood inquired what Mr. Keniry wanted the Board to do.
Mr. Keniry stated that it is the Planning Board’s decision. Mr. Keniry stated that it is not necessary to reduce it.
Mrs. York stated that she wanted to get the information into the minutes. Mrs. York inquired if Mr. Keniry was in agreement with having one for the Planning Board file and one for the Town Clerk’s file.
Mr. Keniry advised to leave the process as is.
Mrs. Wood advised that there is Capital District Data on residential building permits for anyone interested in looking at it. It is for the year 2005.
Mrs. Wood advised that she has brought in a piece of correspondence that was in Country Folks. Mrs. Wood briefly read some of the information: “Senate approved training standards for local planning officials. On May 8, 2006 the New York Senate unanimously approved legislation sponsored by Senator George Winner of Elmira, New York to establish minimum training requirements for municipal planning and zoning officials. Legislation was approved by a vote of 55 to zero”.
Mr. Wilkinson made a motion to adjourn. Mr. Mitchell seconded the motion. All were in favor.
The meeting was adjourned at 9:10 p.m.
Respectfully Submitted,
Kimberly A. Caron Recording Secretary Attachment 1 July 11, 2006
Mr. Raymond E. Black Planning Board Chairman Town of Charlton Town Hall 784 Charlton Road Charlton, N.Y. 12019
Re: 4 Lot Subdivision - Lands of Michelle Cuchelo Tax Map Parcel No. 235.00-1-33.1
Dear Chairman Black:
We have received a proposed four-lot subdivision of lands of Michelle Cuchelo located on the east side of Sacandaga Road approximately one-quarter mile south of Eastern Avenue. The subdivision plan dated June 23, 2006 was prepared by John Gay, P.L.S.(n) of Northeast Land Survey & Land Development Consultants, P.C. I reviewed the plans and observed the property on July 11th and offer the following comments for your consideration.
1. The driveway for Lot #4 exceeds 500 feet. Charlton has a standard detail for long driveways in order to ensure accessibility for emergency vehicles. A note should be added to the subdivision map specifying that the plat plan for Lot #4 must provide the required driveway cross section and turn around facilities. A copy of the standard detail is included with the copy of this letter sent to the applicant’s consultant.
2. Charlton’s standard note related to the right to farm law should be added to the plan. The note reads as follows:
“It is the policy of this state and this community to conserve, protect and encourage the development and improvement of agricultural land for the production of food, and other products and also for its natural and ecological value. This notice is to inform prospective residents that farming activities occur within the Town. Such farming activities may include, but not be limited to, activities that cause noise, dust, smoke and odors.”
3. All of the side yard setbacks shown on the plan are forty feet. The zoning requires a combined side yard setback of 100 feet with one side being at least forty. The plan should be revised to show that each lot can accommodate the requirement. The selection of setback widths can be revised when individual plat plans are submitted for building permits. 4. According to Charlton’s Zoning Ordinance, Lot Frontage is defined as “Continuous uniterrupted width of a lot at the front lot line along a single street or highway ROW boundary.” The frontage proposed for Lot #4 would not appear to meet this definition. A variance from the Zoning Board of Appeals may be necessary in order for the Planning Board to consider Lot #4.
If you have any questions concerning this project, please feel free to call.
Very truly yours,
Michael McNamara, P.E.
Cc: Planning Board Members Bill Keniry John Gay, P.L.S. Michelle Cuchelo Attachment 2 July 11, 2006
Mr. Raymond E. Black Planning Board Chairman Town of Charlton Town Hall 784 Charlton Road Charlton, N.Y. 12019
Re: 4 Lot Subdivision - Lands of Daniel P & Julia H. Casey Tax Map Parcel No. 237.00-1-17.1 & 17.2
Dear Chairman Black:
We have received a proposed four-lot subdivision of lands of Daniel and Julia Casey located on the east side of Sweetman Road approximately 500 feet north of Root Road. The subdivision plan dated June 3, 2006 was prepared by James White, P.L.S. of Azimuth Surveying & Cartography. I reviewed the plans and observed the property on July 11th and offer the following comments for your consideration.
If you have any questions concerning this project, please feel free to call.
Very truly yours,
Michael McNamara, P.E.
Cc: Planning Board Members Bill Keniry James White, P.L.S. Daniel & Julia Casey
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