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2006-10-23 SP MTG43 793 SPECIAL TOWN BOARD MEETING 10-23-2006 MTG. #43 SPECIAL TOWN BOARD MEETING MTG. #43 October 23, 2006 506-508 7:00 p.m. TOWN BOARD MEMBERS PRESENT SUPERVISOR DANIEL STEC COUNCILMAN ROGER BOOR COUNCILMAN RICHARD SANFORD COUNCILMAN JOHN STROUGH COUNCILMAN TIM BREWER PRESS RESOLUTIONS RESOLUTION AUTHORIZING INSTALLATION OF STREET LIGHT ON FARR LANE EAST RESOLUTION NO.: 506. 2006 INTRODUCED BY: Mr. Tim Brewer WHO MOVED ITS ADOPTION SECONDED BY: Mr. John Strough WHEREAS, the Queensbury Town Board wishes to arrange for placement of a street light on Farr Lane East, by the Solomon Heights Community building located at 50 Farr Lane, in the Town of Queensbury, and WHEREAS, such light would be located within the boundaries of the Queensbury Lighting District, NOW, THEREFORE, BE IT RESOLVED, that the Queensbury Town Board hereby approves installation of a 15’ fiberglass embedded pole with a 100 watt acorn globe to be placed at Farr Lane East in the Town of Queensbury, with payment for the lighting to be billed to the Queensbury Lighting Account No.: 025-5182 4305,and BE IT FURTHER, RESOLVED, that the Town Board further authorizes and directs the Town Supervisor’s Office to make all necessary installation arrangements with National Grid Power Corporation and take any other action necessary to effectuate the terms of this Resolution. Duly adopted this 23rd day of October, 2006 by the following vote: 794 SPECIAL TOWN BOARD MEETING 10-23-2006 MTG. #43 AYES : Mr. Boor, Mr. Sanford, Mr. Strough, Mr. Brewer, Mr. Boor NOES : None ABSENT: None Discussion held before vote: Supervisor Stec noted that Councilman Strough and I have been contacted by Solomon Heights requesting a Street light in their area. RESOLUTION GRANTING INTERMITTENT LEAVE WITHOUT PAY TO EMPLOYEE IN THE OFFICE OF THE TOWN CLERK RESOLUTION NO.: 507, 2006 INTRODUCED BY: Mr. Tim Brewer WHO MOVED ITS ADOPTION SECONDED BY: Mr. Richard Sanford WHEREAS, Kim Rivers is a full-time Records Clerk working in the Office of the Town Clerk; and WHEREAS, in a letter dated October 11, 2006, Ms. Rivers shared with the Town Board her concern that a family member is terminally ill and requires care; and WHEREAS, Family Medical Leave Act does not apply because the family member is not in the category of family members covered by the Act; and WHEREAS, Ms. Rivers has requested to be allowed to take intermittent leave over the next two months in order to care for this sick family member; and WHEREAS, the Town Clerk, as her Department Head, has indicated a willingness to allow such intermittent leave without pay; and WHEREAS, the Town Leave Policy allows sick leave only for an employee’s own illness or for the illness of a minor child and Vacation Leave must be scheduled in advance and thus there appears to be little paid leave available to this employee to address her current situation; and WHEREAS, the Town Board is appreciative of the employee’s situation and need to care for this ill family member and, within its discretion, wishes to allow her to do so. NOW, THEREFORE, BE IT 795 SPECIAL TOWN BOARD MEETING 10-23-2006 MTG. #43 RESOLVED, the Town Board authorizes Kim Rivers to take intermittent leave without pay, subject to Department Head approval, over the next sixty (60) days; and BE IT FURTHER, RESOLVED, that the Town Board directs the Accounting Office to treat this leave in the same manner as Family Medical Leave Act leave for purposes of calculating accruals and benefits; and BE IT FURTHER, RESOLVED, that employee must make request to her Department Head, the Town Clerk, for leave when it is desired to be taken; and BE IT FURTHER, RESOLVED, that the Town Clerk is not required to allow such leave if the functioning of the Department will be unacceptably compromised by any particular grant of time; and BE IT FURTHER, RESOLVED, that the leave without pay authorized by this Resolution may be taken in increments of one hour or more and any particular leave is subject to approval by the Department Head; and BE IT FURTHER, RESOLVED, that the Town Supervisor and the Town Budget Officer are authorized to take all actions necessary to effect this Resolution. Duly adopted this 23rd day of October, 2006, by the following vote: AYES : Mr. Sanford, Mr. Strough, Mr. Brewer, Mr. Stec, Mr. Boor NOES : None ABSENT: None RESOLUTION AUTHORIZING GRANT APPLICATION FOR FUNDING FROM NYS DEPARTMENT OF ENVIRONMENTAL CONSERVATION, APPLICATION FOR STATE ASSISTANCE PAYMENTS – ROUND 9, WATER QUALITY IMPROVEMENT 796 SPECIAL TOWN BOARD MEETING 10-23-2006 MTG. #43 PROJECTS IN CONNECTION WITH NEW YORK STATE LAKE GEORGE PLAN FOR THE FUTURE - MANAGEMENT PLAN IMPLEMENTATION RESOLUTION NO.: 508, 2006 INTRODUCED BY: Mr. John Strough WHO MOVED ITS ADOPTION SECONDED BY: Mr. Roger Boor WHEREAS, the environmental health and overall quality of life in the Lake George Watershed area is critical to the social and economic well being for the Town of Queensbury, Warren County and the region in general, and WHEREAS, the protection, preservation and proper management of water quality within the basin is an essential ingredient to maintaining this revered natural resource as a key to the social and economic vitality of this region, and WHEREAS, the Town of Queensbury has been an active participant in developing the critically important water quality management plan, and WHEREAS, the adopted document, entitled, “Lake George – Plan for the Future” identifies numerous recommendations and actions as being critical to pursuing the objectives of preserving, protecting and enhancing the water quality throughout the Basin, and WHEREAS, the New York State Department of Environmental Conservation has recently solicited (competitive) applications for Financial Assistance Grants – Round 9, from municipalities around the State, and WHEREAS, an Application for funding has been prepared in response to such solicitation for applications, NOW, THEREFORE, BE IT RESOLVED, that the Town of Queensbury acting on behalf of and in concert with all the several communities that make up the Watershed, submits the Application for State Assistance Payments – Round 9, Water Quality Improvement Projects dated October 26, 2006 for funding in response to said solicitation, and agrees to serve as custodian for such grant funds, if awarded, and BE IT FURTHER, 797 SPECIAL TOWN BOARD MEETING 10-23-2006 MTG. #43 RESOLVED, that the Town Board further authorizes and directs the Town Supervisor to sign such Application and/or any other documentation for such funding assistance for submission to New York State and take any other action necessary to effectuate the terms of this Resolution. Duly adopted this 23rd day of October, 2006, by the following vote: AYES : Mr. Strough, Mr. Brewer, Mr. Stec, Mr. Boor, Mr. Sanford NOES : None ABSENT : None DISCUSSION GPS COURT CREDIT CARD PROGRAM Mr. Patrick Wren of GPS Government Payment Service Inc. – A company that processes credit card payments for governmental agencies. This service does not cost the Town anything. An individual has two options, 1. Call a twenty four seven call center to process a payment 2. Go to the website and process a payment. Some courts have a pay phone available to the public but the calls are toll free and can be made on cell phones. The only piece of equipment necessary is a fax machine. An individual will call us we get their credit card information they have an identifying number, each judge will have an account number, we process the payment, we approve the credit card over the phone or on the internet with them before we approve the payment and send you notification that it has been approved. GPS assumes all the responsibility and liability for that credit card transaction. Noted Warren County Jail has been using this service for over three years. A fax will be sent to the Court identifying the individuals name and identifying information, the Judges will tell us what identifying numbers that they will need, once you have received the fax the payment is approved and the money is guaranteed. Every twenty four hours we reconcile, the following morning we will fax over a summary of any transaction from the previous day all we ask is that someone verify the transactions that they are all accurate sign it and fax the document back and we do an electronic transfer of the funds directly into the Judges bank account. Cards that are accepted are American Express, Visa, Master Card and Discover. There is lesser service fee to use the service on line than by phone. Board would like to see the program initiated in January 2007… Judge McNally and Judge Muller present for discussion DISCUSSION COURT BUDGET RESOLUTION CALLING FOR AN EXECUTIVE SESSION RESOLUTION NO. 509, 2006 INTRODUCED BY: Mr. Roger Boor WHO MOVED FOR ITS ADOPTION SECONDED BY: Mr. Tim Brewer RESOLVED, that the Town Board of the Town of Queensbury hereby moves into an Executive to discuss salaries of specific individuals. 798 SPECIAL TOWN BOARD MEETING 10-23-2006 MTG. #43 AYES: Mr. Boor, Mr. Sanford, Mr. Strough, Mr. Brewer, Mr. Stec NOES: None ABSENT: None RESOLUTION ADJOURING EXECUTIVE SESSION RESOLUTION NO. 510.2006 INTRODUCED BY: Mr. Roger Boor WHO MOVED FOR ITS ADOPTION SECONDED BY: Mr. Tim Brewer RESOLVED , that the Town Board of the Town of Queensbury hereby adjourns its Executive Session and moves back into Special Board Meeting. rd Duly adopted this 23 day of October, 2006 by the following vote: AYES: Mr. Boor, Mr. Sanford, Mr. Strough, Mr. Brewer, Mr. Stec NOES: None ABSENT: None NO ACTION TAKEN DURING EXECUTIVE SESSION DISCUSSION – TEST PITS Councilman Sanford-Director Hatin is waiting for the Town Board to get the result and make a determination, it was my understanding that we were making a distinction between CEA’s and Non CEA’s and in the event it is in a non CEA area once B&L does their work he can proceed as normal. Supervisor Stec-Noted he will speak to Director Hatin tomorrow. Not in a CEA they do not need to come to us first B&L still does their thing but they do not have to come to us at all. Councilman Boor-Noted that B&L needs to see the drawings of the proposed leach fields before they can sign off. DISCUSSION – DEEP HOLE TEST REQUEST SHULL Mr. Shull-Property location-Lake Sunnyside North We want to find out if we can build on the property without variances. Supervisor Stec-Noted Mr. Shull does not own the property. Mr. Shull-Noted he has spoken with the Planning Dept. and went over setbacks in regard to new construction. I need to know if the septic would be suitable. Councilman Sanford-Noted that in this situation where there is no failed system and the person is purchasing the property the deep hole test is to be paid for by the applicant. 799 SPECIAL TOWN BOARD MEETING 10-23-2006 MTG. #43 Supervisor Stec-If you want a comfort level on whether to purchase the property you can get that with your own deep hole test without our stamp of approval on it, if you want to come back and say I am buying it and now I want to put in a system then you would ask us to witness a deep hole test or wait until you are in season next spring and do a deep hole test. Councilman Brewer-Get your deep hole test from your engineer and have your engineer or planner plot it out to see if it meets the setbacks. Mr. Shull-If I do a test hole in the next week can we use that, does it have to be done at a certain time? Councilman Sanford-You would be using that for your own information, it will not go to us for any kind of a review, you would be doing that to say hey it looks like I can put in a traditional septic system here. Councilman Strough-I think what he is asking, if he goes and does the test pit, can he have B&L go over there if he is willing to pay for it so he does not have to do two test pits. Board agreed that Mr. Shull is going to pay B&L to witness the test hole and would accept their conclusions. DISCUSSION SEABOYER SEPTIC Attorney Mike O’Connor-On September 11, the Town Board revoked the building permit for the septic system that had been approved for the Seaboyer property and had language to the effect that until such time as all necessary variance are granted for placing a new septic system within a critical environmental area for the purpose of new construction the th revocation would stand. The Planning Board on September 26 tabled the site plan application and said until such time as the septic approval is received for the Town Board of Health the application would be tabled indefinitely. Historically and I think you are probably aware of this because you get the minutes from the Zoning Board of Appeals and the Planning Board I think the Seaboyers were before this board on five different occasions beginning back as early as September on ’04. You did approve the variance for them you congratulated them on the system that they come up with because it was an innovated type system. They then went to the Zoning Board and had at least three different appearances and public hearings before the Zoning Board, with the Zoning Board granting area variances after lengthy discussion as to whether this was renovation of new construction. We went through a lot of calculations and presented the Zoning Board that seventy one percent of the existing house will remain and the balance will be torn down and a new roof would be put over the entire house. They then went to the Planning Board they filed for July and bumped to August. In August there was a lengthy discussion and part of that discussion was that the Planning Board was looking at this as a moving target and that is problem with properties within a CEA and everybody is trying to get their arms around the regulations that you want to apply or not apply. They came in and said the storm water management plan had to be a major storm water management plan they wanted an actually landscaping plan they wanted a buffer along the shore they wanted native growth between the lawn and the shore. We went out from August threw all that together and basically went back to them and found that the application was tabled. John Strough was at that meeting and we said to John after the meeting, Seaboyer said John at the meeting we tried to be compliant we have tried to accept all the suggestions that had been made we want to go forward, where do we do from here. There was talk about a septic association being formed, being considered by the Town and one of the suggestions was the Seaboyers are presently on a holding tank system if they stipulated to join this association as it is formed or become a member of it however you want to put it together when it is form would the Town Board acting as the Board of Health allow them to proceed with their construction and utilize the holding tank that they presently have. Contrary to some feeling this is not an expansion, within any of the definitions, this is a reconstruction a modification of the existing house the floor area ratio is the same after construction as before in fact it is probably sixty feet less or fifty 800 SPECIAL TOWN BOARD MEETING 10-23-2006 MTG. #43 feet less. Since that time too, and I think you got a packet the application and this has been approved by CT Male the storm water has been approved by CT Male the septic system was approved by CT Male when it was before this Board back in ’04. I guess it was approve in January ’05. The septic system was just recently reviewed by CT Male again it was approved because there was an issue as to, I think you resolution when you revoked the existing permit was based upon the fact that your interpretation that the building permit that was issued on January 11, 2006 was in error and it did not include the fifty percent set aside for replace of a new filtration area as required by the waste treatment handbook. The application was submitted to the Department of Health they approved the waivers for the set back from the lake they also approved the set back from the property line, they also approved the set back differential from the foundation and they said that no waiver was required for the fifty percent reserve by their interpretation of their rules and regulations that you sited or referred to. So, I guess what we are looking for is clarity. How do we go forward and I do not know if you had a chance to look at the letter from the Department of Health. Councilman Sanford-We just got that today. Councilman Boor-We just got it, you just gave it to us when you walked in. Attorney O’Connor-We just got it today to I think, it was dated… Councilman Boor-We just got it today. Councilman Strough-I have got a question that has come up already. Let me just say that yes, I did talk to you and Seaboyer’s and it was at the Planning Board Meeting and I heard you and the Seaboyer’s give an argument and I think it is valid that the floor area ratio is going to be a little bit less. The permeability of the lot has been enhanced it greater than was ..before, will be more so probably before, that you rearranged things and done things according to current storm water standards, you have even added a natural vegetation buffer to help prevent lawn care products from polluting the lake, and you currently have a holding system. Considering all that the holding tank we know isn’t polluting the lake. Ok. That is a given vs some other system. So, I said but you know that tends to be something that I may view favorably at least at the moment but I said to you that I you need to come to the Town Board for a workshop because I cannot speak for the Town Board. Now, with having said that and it is in agreement with what you have said it does say in the Health Department Report on the second page that the multi flow aerobic treatment unit shall remain in operation. Now, I thought we were going to stay with the holding tank in this concept. Attorney O’Connor-This is if it is put in place. Councilman Strough-If the other septic system were put in place., this system does not address the holding tank though. Attorney O’Connor-No, it does not. This was a follow through on the Councilman Boor-That has been revoked though. Councilman Brewer-What has been revoked? Councilman Boor-The one with the aerobic. Attorney O’Connor-The building permit has been revoked. Councilman Boor-Correct. Attorney O’Connor-This is a follow through with the Department of Health in particular as to whether or not your interpretation of the fifty percent reserve is a shall or if available. They have come down on the side that its if available. But that’s I want that so you have the full information they would have no problem having us construct this system as we proposed it before and as you approved it before. 801 SPECIAL TOWN BOARD MEETING 10-23-2006 MTG. #43 Councilman Sanford-I am just a little amused at that last statement you made so if you can repeat that I would appreciate it, so if you cannot put it in then it doesn’t matter than it is not required? If you do not have the space for the replacement system then the law doesn’t apply. Attorney O’Connor-No, We have shown on the engineering plans how a replacement would be made and basically they allow you take out the failed system entirely, in its entirety and again, the other night before the Town when you were in regular session I do not want to be the engineer, Tom Nace and Tom Center are the engineers. There is process that you go through that gives you a brand new system put in the same place where the old system was. Councilman Sanford-I guess what I would like to ask this is who wrote this DOH? Attorney O’Connor-yes. Councilman Sanford-Why does DOH even have it in this book if it is not applicable? Attorney O’Connor-It says where available in the book. Councilman Sanford-What page are we talking about, do you know? Unknown-Seventy five A Attorney O’Connor-The red book is the guidance, Seventy Five A is the actual law regulation, Tom why don’t you speak. Mr. Seaboyer-Well, hold on a second Tom, if you would allow me. We want to do what the Town Board feels is best, we have options that we are presenting to you and if it best fits what you feel is the long term good of Rockhurst and the Town of Queensbury to leave our system as it is until the ultimate solution is made for that area we are willing to do that, and we will stipulate that we will do whatever you come up with when you make the agreement. If on the other hand a hi tech system for this home which has been a year round home forever, which we presented several years ago is the way you would like to negilable see us go we are willing to do that to. It is an expensive process but expense is compared to the fact that we have been going through this for neigh onto three years now. Basically gentlemen, we just want to do what is right and we are looking for some direction as Mike said at the very beginning. I think that apparently the DOH feels that this is an approvable system I think that your Town Engineers CT Male are in agreement, if on the other hand it makes sense for the long term that Roger and some of the other folks have been proposing to put this thing on hold until Rockhurst is squared away we will do that too. Councilman Boor-That would be what I would prefer because I think and Dan can attest we just had some grant money move forward in that direction and I do not know if you were at the fire house when we had the meeting, there was overwhelming support for some kind of maintenance district up there. Supervisor Stec-It will start off originally as a septic, it is a district a special district it is not an association this is district like a sewer district, a water district it would be the first one of its kind as I understand it in the State but the State is looking encouraging, which is why we are very competitive on the money. Councilman Strough-The one thing I would not want to do to the Seaboyers is make them put in an expensive system Supervisor Stec-And expensive system and then two years from now Councilman Boor-We can’t let them do that. Supervisor Stec-You need to know what the risk is and that is what you are asking us 802 SPECIAL TOWN BOARD MEETING 10-23-2006 MTG. #43 Councilman Boor-We can’t by our own code do what they want us and I will read you that and I am surprised you haven’t. Councilman Sanford-I would like you to explain it to me. Councilman Boor-Ok. You need and this is we can take some partial responsibility or somebody in this building might but make no mistake you would not have gotten the variance that you initially got if everybody had been aware of all of the ramifications in the writings in both of these books. Our own Code says no variance in the strict application of any provision of this Part I shall be granted by the local Board Of Health unless it shall find all the following and essentially you have to be guaranteed reasonable use of your property which you have now. In order to get a variance you have to show that the system you are on is failing. It isn’t failing. There is one other, so our own Code doesn’t authorize us to let you go to this leach field type system. Then in regards to the letter and I apologize I went to my mail box right before the meeting and this was in it so I have not read anything in here yet. We have to abide by the strictest interpretation of this and this and the strictest interpretation is without a failed system and with the reasonable use of the property that you have now we cannot authorize you going to that aerobic system. Mr. Seaboyer-So, are you saying that you would allow us to continue using the system that we have now? Councilman Boor-Yes. The problem you have without a waste management district is you probably can’t put the expansion or the new construction that you want on there because it is not of the capacity that would be required for a new three bedroom home. So, when you, you are stuck in a catch twenty two and that is why we are pushing for this waste management district so that people such as yourself have resolution to this thing. Attorney O’Connor-This is a two bedroom home now and what is proposed is a two bedroom home. It is not an expansion. Councilman Boor-Well, if then if the capacity of your holding tank is such that it would meet the criteria of a seasonal residence, see you are stuck in that one too, we cannot grant holding tanks for year around residences. You have said this is a year round residence. Now, you go to get new permits you are not going to be able to get a permit for a year round residence on a holding tank on a new permit not allowed. Mr. Seaboyer-Well, that is what we came to talk to you about in the first place. That is why we applied for this in the first place, because this was a full time residence always has been. Councilman Boor-So, you were aware of that then. Mr. Seaboyer-A full time residence, of course. Councilman Boor-No, you were aware that full time residence are not supposed to be on holding tanks? Attorney O’Connor-Not when they purchased the property they weren’t aware of . Councilman Boor-No, when you put the applicant in, ok, I am just trying to get a history because you are absolutely right you have been here a lot of times and there has been a little different story every time. Attorney O’Connor-Your first response to them was to tell them to off the holding tank, I think, I was not here the first couple meetings, they were before you five times. Councilman Boor-At least. 803 SPECIAL TOWN BOARD MEETING 10-23-2006 MTG. #43 Attorney O’Connor-Tom I do not know if you were there the first time they were told not to use the holding tank they would have to go to a conventional system. Councilman Boor-Actually, Mike that is not quite accurate. Engineer Center-It was an existing holding tank system for the existing.. Councilman Boor-We did not tell them to go off the holding tank they came in requesting to come off of the holding tank. The issue was that we did not want to do that and we were not comfortable given the constraints of the property all be it the slope all be it the proximity to the lake no matter what side of the lake where it is Sandy Bay or Warner Bay side, technically they would need variances for either side, to be two hundred feet for new construction. Unknown-For a fill system. Attorney O’Connor-That is for a fill system. Councilman Boor-And that is what you guys Attorney O’Connor-This is not a fill system. Mr. Seaboyer-Look at the shallow system Councilman Boor-Look it, you cannot do it, it is not failing, it is not a failed system. Mr. Seaboyer-alternative to Attorney O’Connor-By definition a property on a holding tank is a property where a system has failed. I can argue, I think we can argue that Councilman Boor-No, it is not failing because it is not one drop is going into the lake they have been on it, they bought it that way Mike, it is not failing. Attorney O’Connor-Let me go back aways Councilman Sanford-It is failed system, it is a holding tank system. Councilman Boor-It is a holding tank. Attorney O’Connor-Under that definition of a tricker device I think you are going to find that, that is what referred to. Holding systems are not going to fail unless they are not considered failed systems if the holding tank is operated correctly. But, the property doesn’t have a conventional system on it, it failed at one time and the holding tank was put in place. Councilman Boor-It is what it is now, Mike. It is not failing. Attorney O’Connor-I just, to go back to what Mr. Seaboyer started to say is what we are looking for is some direction we would like to be able to proceed with the renovations that we have proposed. They are not an expansion and we are willing to join the district or be members of the district that is formed in fact we would support the formation of the district we think that is probably a good idea. Councilman Brewer-So, if were to say stay on what you are on, can you proceed with your renovation. Councilman Boor-No. Councilman Brewer-Why? Councilman Sanford-The Code does not allow it. 804 SPECIAL TOWN BOARD MEETING 10-23-2006 MTG. #43 Councilman Boor-The Code doesn’t allow it. Councilman Brewer-Renovations, you are talking about new construction. I am asking, let me get my mind straight about it Roger. Councilman Boor-They say that they have been here five times, excuse me you are here I do not mean to treat you as a third person. Never gotten a straight answer in any one of those times, the first time you even mischaracterized tonight saying that we wanted them to get off the holding tank. No, they wanted to get off the holding tank. When they came back and we finally haggled back and forth and we came up with a system that we thought was appropriate it was, the variance was for the house they are in and our Attorney, in withdrawing that resolution that approved that said that variances are for a particular buildings. You cannot get a variance for a building and then tear down a building and build a new one and say well now the variance is for this building. You know that. Our Attorney knows that. So, you have come to us with different stories every time and then when we show that we have a little bit of distain and a little bit of distrust when you characterize this. This isn’t new construction when in fact our Code Enforcement Officer says that it is new construction. Fifty percent and when you approve a variance for that aerobic system and then somebody downstairs changes the engineering on that without telling the Board, who granted that variance, that the engineering has been changed a little bit with a retaining wall and separation distance from the house. That is where it get dicey. Things are being done that were not approved and I have a real problem with the characterizations that have been made every time this application comes before us. You talk about a moving target if we had known ahead of time that you wanted to tear it down build a new house then we would have been right on the same page right from the beginning. It is clear what is being desired here, it is clear when you look at the Planning Board minutes what is being attempted here and it is not allowed in our Code and I am sorry I am genuinely sorry that it is not allowed. But until that district is formed and until guidelines in that district are set that apply to everybody on that street, I do not think we should be piece meal on them all ahead of time so that somebody gets ahead of the curve and maybe gets something that is not appropriate for what is going to be recommended for that district. Attorney O’Connor-You have an existing house that is used on a year around basis that is on a holding tank Councilman Boor-Nothing going into the lake. Attorney O’Connor-Nothing going into the lake, and what the applicant would like to get is permission to renovate that house, the renovations are major renovations but seventy one percent of the floor space and the walls remain as they are and it has a need roof put on it. It has a decrease in permeability by approximately ten percent a little bit more than a ten percent increase, decrease in non permeable … Councilman Boor-Again, Mike we are going to help we are not a Planning Board doing site plan review. You are looking for a Board of Health decision. Attorney O’Connor-But, your response to me is oh we were talking about Councilman Boor-My response is what the law says. Attorney O’Connor-No, your response is to me that you are treating this a brand new construction, and brand new construction Councilman Boor-I am not treating it as brand new construction at all, the brand new construction never came before this board and still isn’t before this board. You are not here with a plan for any kind of remodel you are here I do not know why because it is very clear that you cannot do anything with a tank that is in the ground. You can give, we cannot grant you a variance. 805 SPECIAL TOWN BOARD MEETING 10-23-2006 MTG. #43 Attorney O’Connor-So, if you are in this circumstance you just let the house fall in around you. Councilman Boor-No, you can maintain it and you can hope that the, you can maintain it Mike, as characterized by the minutes this was not a remodel this was new construction. Attorney O’Connor-We argued that for probably about two months before the Zoning Board of Appeals. Councilman Boor-Yes, I know Attorney O’Connor-And came up with the calculations that I had that I have given to you that seventy one percent of it stays the same the thirty nine percent is changing. Councilman Boor-But don’t you understand we cannot do what you are asking regardless of whether it is new construction or not? Councilman Sanford-There is total reasonable use of the land. Attorney O’Connor-You are acting as a Board of Health Councilman Boor-Right, you are seeking a variances. Attorney O’Connor-I think I have got to ask you to review the Department of Health position on the exact same property the exact same application. Councilman Boor-It says we must go by the most stringent of these two. Attorney O’Connor-And you must apply the Department of Health rules and standards. Councilman Boor-We must go by the most stringent. The most stringent, it does not say the one we want to go with it says the most stringent, that’s what, read it. We did not write it. Councilman Strough-Now, so three possible scenarios may take place, one is well nothing happens, and nothing happens the other scenarios we allow you to use the septic system you currently have and will be using in the mean time the lake does get better environmental protection because of the buffering and landscape standards and storm water standards that you have agreed to and you have gone thorough both boards to get to that conclusion. Also when I am on the second option it seems likely but it is not a given that a septic district will be formed for Rockhurst and it also seems likely that we are going to encourage holding tanks if that septic system, now we do not know that for sure and Roger will point that out to me. But, it seems likely from what I am hearing from Dave Decker and others. The third option appears to be that you have got the Department of Health approval and you might be able to just go ahead, but I am not sure. Councilman Boor-Let me ask the engineer because Councilman Strough-The Department of Health basically is approving the septic system that we had previously approved. Councilman Boor-Which is not on the table now. Councilman Strough-I am just saying looking at the various options. Councilman Boor-It is not on, we can’t hear that one. Councilman Sanford-I hear what you are saying, I cannot go down this road where we put our at any given time the five of us put our wisdom in place of what the Code is in anticipation of what we think might make sense in an unknown future. As much as there’s in this particular case he may be able to justify or rationalize it, it is an incredible arbitrary position to take, we cannot go there. When we sit around here and deal with 806 SPECIAL TOWN BOARD MEETING 10-23-2006 MTG. #43 everything on particulars and listen to lawyers rationalize why we should be allowed doing this because they are going to plant some vegetation it is a dangerous road to travel, we really do need to be paying attention and the whole town should have been paying attention for many, many years, decades to what the codes are and then we would have have quite the congestions and the problems that we are currently faced with up in that area. It is because perhaps well intended but we have allowed leniency and drafting and the next thing you know we have been permitting new construction and then if we do this I can only anticipate down the road, we have a failed holding tank now, we need a bigger holding tank because we keep getting .. Councilman Boor-That was going to be my question. Councilman Sanford-We really do not want to be in this game we want to have.. Councilman Boor-When it is clear, when the direction is clear and it is in writing and its Code why don’t we want to obey it. That is my question. Councilman Strough-Well, there are a couple of things about the Code we have arguments over what does the Code say Councilman Boor-I am just talking about page 19, 136…just read the first Councilman Strough-But, I think we also have to keep in mind, Roger I am not denying we have to follow the Code and the Code may not fit the future, I do not think the Code will fit us when we go to a sewer, septic district. Councilman Boor-When we do the new zoning in compliance with the waste water management district we can address the district with its own unique needs and that’s how it gets down where everybody in that district gets treated equally. The rules are the same for everybody in that district but if you just want to do a patch work one at a time first in first out God only knows what that district is going to look like. Councilman Strough-I think we have to look at each case on its own merits and its own, because each case is going to be a little bit different, this is an unusual thing. The case history here of the Seaboyers and I know Mike you are going to say well and the Code says this, but I think you have to the bottom line is what does the most sense here for the lake. What is the environmentally right thing to do, I think that is sometimes we have to look at Councilman Boor-Fine then we are good. Councilman Sanford-Keep the homes smaller you know, don’t encourage expansion and new construction in an area that is already over built until we have Councilman Boor-A plan Councilman Sanford-an infrastructure that will take care of it that’s makes sense. Councilman Boor-That is what we want to do. Mr. Seaboyer-And this house is not getting any larger, it is not expanding, it is the same foot print the same square footage or less, please, with the environmental improvements and I thought and I know that you gentlemen as well as everybody else in the Town that you gentlemen are charged with protecting the environment and protecting the town and improving the town and everything that we have proposed to do is to that end. I understand the situation that you feel that you are in and we are looking to be reasonable and logical about it too. We may have other options ect.ect.ect. Councilman Boor-You may be able to build a new home. Mr. Seaboyer-But we prefer to just get your blessing and go on with it. 807 SPECIAL TOWN BOARD MEETING 10-23-2006 MTG. #43 Attorney O’Connor-The size of the house really doesn’t, isn’t at issue with what you have for an issue on the table because you are talking two bedrooms and you are going to have that same problem whether you have the .. Councilman Boor-What is the square footage, Mike counting the cellar that is going to be refinished? Attorney O’Connor-Sq. footage on the first floor is Councilman Boor-It is a mute point but I think it is important. Attorney O’Connor-Sixteen hundred and eighty three square feet, I believe it is and that Councilman Boor-The total area Attorney O’Connor-includes four hundred feet of ..garage. Councilman Sanford-Is that for both floors you said the first floor and then. Attorney O’Connor-Yes. Councilman Boor-I am going to check… Attorney O’Connor-Roger, I am not trying to characterize what somebody has said or not said, I want to be careful not to do that Councilman Boor-Well, I have to do that. Attorney O’Connor-Ok, I am trying not to make that the argument of the day, what somebody has said or not said, we are not all the way through the Planning Board, it seems like we had a consensus that the Planning Board would approve this so I do not want to say that I have Planning Board approval, but right below that section there is a section b Councilman Boor-Of section 136 19 or 20? Attorney O’Connor-136 7 Councilman Brewer-136 7? Attorney O’Connor-Yes. Councilman Boor-I am on 20 is the one where the variance is. Councilman Brewer-Roger, you did not read the first paragraph. Councilman Boor-I did. Councilman Brewer-Alternate … Attorney O’Connor-This thing here says alternate system Councilman Brewer-I did not say you didn’t read it … Attorney O’Connor-fill systems which are permissible under 136-10 below may be permitted by application to the New York State Department of Health. Councilman Boor-Yea. Attorney O’Connor-That does not say anything about failed system or Councilman Boor-No, it is an option. 808 SPECIAL TOWN BOARD MEETING 10-23-2006 MTG. #43 Attorney O’Connor-This is an alternative engineered system. Councilman Boor-We have to go by the strictest Mike, how many times do I have to Attorney O’Connor-This says that you can do this. Councilman Boor-But the strictest says that we can’t, read them all Tim, I do not know how many times you have to read those. Councilman Brewer-Well if you read A it says no variance in the strict application of any provision of this part I shall be granted by the Local Board Of Health unless it shall find all of the following. Councilman Boor-All of the following, read one, two and three under that. Councilman Brewer-The paragraph before that it says the local Board of Health may vary or adapt the strict application of any of these requirements of the part I in the case whereby such strict application would result in the un-necessary hardship that would deprive the owner of the reasonable use of the land.. Councilman Boor-He has got reasonable use. Councilman Brewer-What I am saying is it says we can grant variances, you are saying we can’t. Councilman Boor-Where does it say Tim, no variance in strict application Councilman Brewer-Read the paragraph before that though in context Roger. I am saying we can if we chose to. Councilman Boor-No, it says we can’t unless all three of these are.. Councilman Brewer-The first paragraph before that says we can which is right. Councilman Sanford-You can if they don’t have the reasonable use of the property. Supervisor Stec-That is a judgment call by the five of us. Councilman Boor-Right Councilman Brewer-Right. Councilman Boor-You said that they have been living in it as a year round residence for how many years. Supervisor Stec-I am not saying they do or they don’t I am just saying that… Councilman Boor-That is what is characterized it as. Attorney O’Connor-Because of the difference levels of the house, we have a portion of the house that floods every time it rains and that is what we are trying to correct. We are trying to raise the level of one end of the lower level, it is just not. Councilman Boor-Do you really want to say any more? You were going to put a system in the ground and you are telling me that you have had flooding in it right now and you were going to put an in ground system in? Attorney O’Connor-Which is some fifteen feet below the area where we are talking about putting the system in grade. Your Town Engineer has approved it, our engineers have approved it, the State Department of Health has approved it from an engineering point of 809 SPECIAL TOWN BOARD MEETING 10-23-2006 MTG. #43 view and separation point of view except for the …distance from the lake and from the boundary of that property. They have also looked at the soil test. Councilman Sanford-You are here talking to us about a holding tank and at the same time you are getting approval for a septic system from DOH and what is the motivation…do you really plan on staying on a holding tank? Attorney O’Connor-We will do either. Mr. Seaboyer-If you would like. Councilman Sanford-Then why this, why did DOH get into, running this by DOH for a septic. Attorney O’Connor-To find out whether you interpretation is correct or our interpretation is correct. Councilman Boor-How many times, you will be back more I am convinced of it and that is just a fact of life. I am not going to vote for what you are asking. Councilman Sanford-Plus you know before any decision is made by this Board on anything discussed tonight of course it is just a discussion item, I am certainly going to want to review it with Town Attorneys as well. Councilman Boor-And make it very clear on what we can and can’t do. Attorney O’Connor-Do we make application, do you want us to make application to you? If you tell us, I think, if you tell us that we can simply stand the existing system .. Councilman Sanford-We never told you, you couldn’t. Attorney O’Connor-but proceed with our construction. Councilman Boor-We cannot authorize that, that is not this Board’s jurisdiction. Attorney O’Connor-I think you can. Councilman Boor-No, that is a Planning Board decision, Mike, you know that. Attorney O’Connor-No, no, your portion of it. You can say we will let you live with the existing septic system as is, satisfy the Planning Board as to the site plan issues. Councilman Boor-No, we cannot do that. Councilman Sanford-We can not go that, they do the site plan. Councilman Boor-We are not going to start interfering with the Planning Board. Attorney O’Connor-That is what I just said. Councilman Sanford-They deal with site plan we are willing to say to you I guess if this is any help at all, stay in your home the way it currently is configured with the current holding tank you have, that is no help to you. But that is what we are basically saying at this particular point in time. Councilman Brewer-We should not say anything as far as what they go to the Planning Board for. If we are fine with the holding tank Councilman Boor-Right, that is exactly Councilman Brewer-They go to the Planning Board, the Planning Board approves reconstruction or the seventy percent or whatever they are going to do that is none of us 810 SPECIAL TOWN BOARD MEETING 10-23-2006 MTG. #43 Councilman Boor-It is not before us. Councilman Brewer-Not before us for anything to say. Councilman Boor-No recommendation, nothing. Councilman Brewer-So, we have no problem with the holding tank, go to the Planning Board, if they approve it Attorney O’Connor-That is a vicious circle, the Planning Board will send us back here. Councilman Boor-That is because you were not up front with what you were asking for, Mike. Councilman Brewer-What did the Planning Board ask us for, Mike? Councilman Sanford-But the Planning Board not going to approve the continuation of that you were saying and you are coming to us? …. Councilman Brewer-What is the Planning Board asking you to get from us? Attorney O’Connor-It was tabled at such time until the septic approval is received from the Town Board of Health. This would be tabled until an unspecified date until such time the Town Board of Health takes its action. Councilman Brewer-If the Town Board of Health says that you can stay on the holding tank than what is the issue? Councilman Boor-The issue is that the holding tank might not be big enough for the number of bedrooms they want Tim. Councilman Brewer-He has got two bedrooms, right? Attorney O’Connor-He has. Supervisor Stec-And you are going to stay at two bedrooms? Attorney O’Connor-Yes. Councilman Brewer-So, why isn’t it big enough? Councilman Boor-Because maybe it is only twelve hundred and fifty gallons. I do not know how big it is. Councilman Brewer-What difference does it make if it is pumped out every three days who cares? Councilman Boor-No, because there is a formula. Councilman Brewer-Roger you are contradicting your self Councilman Boor-I am not. Councilman Brewer-You are saying it is ok to stay on it Councilman Boor-It is. Councilman Brewer-but then you are saying it is not ok. 811 SPECIAL TOWN BOARD MEETING 10-23-2006 MTG. #43 Councilman Boor-I am saying he can stay on it just the way it is and that is fine. It is grandfathered in the way it is, but I am not going to give him new construction approval on something. Councilman Brewer-You can’t you just got done saying you can’t give him new construction approval. … Councilman Sanford-You can’t he has reasonable use of the property Councilman Brewer-You can’t or you cannot? Councilman Sanford-He probably has a holding tank that is undersized for what he currently has now but he is basically grandfathered in . We are not going to give the blessing for him to go into new construction on a system that may not have the proper capacity. Again, Councilman Brewer-Or you cannot give him the denial either. Councilman Sanfords-We are not. We are basically saying you got a status quo, you got a status quo. Councilman Boor-You got reasonable use of the property, it is like. Councilman Sanford-We are not looking to deny anything we are not looking to approve anything. They are asking us to somehow or another weight in ..which is going to influence the Planning Board. Councilman Boor-…so that they can go to the Planning Board and say the Town Board said they have no problem with this system. It is pretty clear what is going to be said. Attorney O’Connor-Well the Planning Board had sent us to you by their resolution. Councilman Sanford-Well that is fine and the answer is we are leaving it at status quo, go back to them and tell them that’s Councilman Boor-You can stay on your holding tank. Supervisor Stec-Whatever you can do with the holding tank you got, that is what I am hearing the Board say. Councilman Boor-And you know what I truly and honestly believe that if this waste water management district is put in place it may suffice and give you all the relief you need, but we cut the legs right out from under that districting being formed if we start taking on all these, granting all these things illegally ahead of time. What is the incentive to go for a … or management district. Councilman Sanford-What is the incentive for the people that live in your area or want to go into to some form of a costly but improved system if we are piece meal approving everybody that comes along the way. Councilman Boor-In violation of our own Code. Councilman Sanford-It is like I just put a new septic system in I am not going to want to pay the cost to hook up to the sewer or pay a sewer tax. Attorney O’Connor-You can condition that. Councilman Boor-Well we are not going to. 812 SPECIAL TOWN BOARD MEETING 10-23-2006 MTG. #43 Attorney O’Connor-The same as every speedies Councilman Boor-We can’t Mike. Attorney O’Connor-Yes, you can. Every speedies permit the State issues says that if sewer becomes available you are required to join the sewer. Councilman Sanford-Sure but that is not good policy making for us to do that kind of stuff, I mean, to sit here and to pick and choose and to be arbitrary and to say ok we are going to let you go ahead and do it and then a year later Councilman Boor-But, you can’t Councilman Sanford-we are going to say oh, by the way that real dollars that you put into that you are going to have to by pass all that now and hook in and pay a sewer tax, that is not what is responsible. It may appear that way to you at this particular point in time coming here advocating for your client but that is not is not our position. Attorney O’Connor-That allows my client the option of going forward with his Councilman Boor-It is not a legal option, Mike, you know it isn’t. Attorney O’Connor-I do not agree with you Roger. Councilman Boor-You agree with me but you are not going to vocalize. It. Attorney O’Connor-No, I don’t. Councilman Sanford-What he thinks whether he agrees or doesn’t agree isn’t the point Councilman Boor-I know. Supervisor Stec-Is there anything more, I think we are a circular argument, right now. I am hearing that the consensus of the Board is to tell you, you can go forward without anything from us with whatever you have already got right now… Councilman Brewer-I guess I do not understand why they think that we need to take action? Attorney O’Connor-Because the Planning Board will not take action until we get .. Councilman Brewer-I understand Michael, why does the Planning Board want us to take an action if we do not have to. Councilman Boor-Because they do not want to go through what we just went through. It is very uncomfortable. Councilman Brewer-Because they do not want to make a decision is what you are saying? Councilman Boor-No, they do not want to have to go through this Engineer Center-What I think they said is there is no, because of the revocation of the septic permit there is no septic system for this work. Councilman Brewer-You have a holding tank isn’t that the septic system? Engineer Center-We did not get into that conversation with them because they said that was the preview of the Town Board to make the decision on. Councilman Brewer-If the Town Board revokes the system 813 SPECIAL TOWN BOARD MEETING 10-23-2006 MTG. #43 Engineer Center-The septic tank staying on the existing system was something that came up after the Planning Board in discussion with Mr. Strough and I guess a question would be is if the Seaboyers were to put a variance forth to bring that existing holding tank system up to todays code by putting in a Councilman Boor-Can’t Engineer Center-pump with compliant, just one second, put in a pump with the compliant shut offs to meet the code for the existing two bedrooms that they have would that be acceptable. Councilman Boor-No. Engineer Center-And then join the management district. Councilman Brewer-What would you have to do to make that Councilman Boor-..capacity, Tim. Engineer Center-I am assuming we would have to get a variance to install the holding tank. Councilman Brewer-Todays standards say you have to have how big of a tank for a two bedroom home? Councilman Boor-Look it we are missing a whole bunch of things, we cannot grant holding tank variances for year round residences. Engineer Center-An existing year round residence Councilman Boor-Enjoy the fact that you can and that you have reasonable use of your property and that you can do, I do not know how much better it gets. Attorney O’Connor-Is that belief based upon your understanding of the State Regulations? Councilman Boor-It is based upon the strictest interpretation. Attorney O’Connor-The way you read Councilman Boor-Mike Attorney O’Connor-didn’t say that you can’t a year round ok, there is a letter Councilman Boor-I know you can get a letter from the DOH probably to say don’t worry about it just go year round now. Councilman Sanford-We are going to get legal clarification on it Mike, I think Supervisor Stec was summoning this up at this point. Supervisor Stec-I thought I was. Attorney O’Connor-John are we, just leave it as is not do anything? Councilman Strough-Well I think Richard is going to get a legal interpretation of what is going on here and lets see what that says and then you stay in communication with us and we will see what goes from there. Lets see what legal has to say. Attorney O’Connor-You are going to ask legal counsel for what opinions… Councilman Sanford-I am going to work with Mr. Boor on this and we will present some questions to our Attorney I do not know what they will be but they will be 814 SPECIAL TOWN BOARD MEETING 10-23-2006 MTG. #43 Councilman Boor-You will get copies of the questions that we present. Councilman Sanford-Not necessarily we have a ..right to consult our attorney in a privilege manner and we will try to flush out some of the issues that are raised here and see if they provide any different approach that we may wish to take maybe it is what was just stated. We will let you know what we find out. Attorney O’Connor-The one question that is curious and I am not sure, I appreciate you asking is when we came to the board because we needed variances because you are acting as the Local Board Of Health, if the State grants those variances is that satisfactory, I am asking you to ask you Town Attorney that issue. Councilman Boor-We already have. Attorney O’Connor-Ok. Councilman Boor-How many times do I have to say we have to go by the strictest interpretation. Councilman Sanford-I appreciate what you are saying. Attorney O’Connor-Ask him, to ask that question because if this were not maybe in a CEA zone and I walked into Dave Hatin with this letter saying here the State waivers, I think he would issue a building permit. Councilman Sanford-He may very well, I guess your question is, if I understand it correctly, does some kind of a letter solicited on behalf of a client trump the Town Boars decision capability? I will ask that question. Attorney O’Connor-The only purpose for asking that question, if that is the case then we could go ahead with that system that you don’t want would you then consider a lesser evil to allow us to stay on the holding tanks that are presently there until you form this management … Councilman Sanford-Until we get there I would rather not say. Attorney O’Connor-I am not trying to, we are not trying to end run, your approval process that is the point I am trying to make Supervisor Stec-You are looking to avoid spending money on something if there is a better than fifty fifty chance that we are going to have the septic management district. Councilman Boor-I just don’t want to get anything that is going to ruin the chances of that wastewater management district being formed and I think this would be this type of application would essentially send the message why would we want to do that all we have to do is go to the Town Board. They do not obey their own code or the State Code so why .. Unknown-You condition your approval upon requirement. Unknown-A C/O or whatever would be revoked if we did not follow through with the management. Councilman Boor-I will get the Planning Board minutes and I will review the application we have on file. Councilman Sanford-I will work with you on it. I like John’s suggestion however I think I will defer to you to be a little bit lean on this one… 815 SPECIAL TOWN BOARD MEETING 10-23-2006 MTG. #43 DISCUSSION DEEP HOLE TEST REQUEST ARAKELIAN 14 Troup Pavilion Road Supervisor Stec-We have your request and drawing you are seeking to do an out of season test pit. Mr. Arakelian-Noted they have work on the project since a year ago August, they did not know about this deep hole test requirement, we have had one done with great results, we sent the information to your engineer with the plan, we are hoping you will allow them to come up. Councilman Boor-Questioned if a variance is needed? Mr. Arakelian-No. Councilman Sanford-Questioned if there was a site plan review? Mr. Arakelian-No. Reviewed their project. We need only to do the test holes with your engineers present. Councilman Sanford-I thought the criteria in our blue book basically made a distinction between replacing an existing system and if the perk test were ok they could be within a hundred feet but if it was new construction two hundred feet. Councilman Boor-No, it has to be at least a hundred, because you see what happens on Rockhurst the one that was just in here they are not anywhere near, we cannot deny them the ..use of their property we are not going to do that but we cannot allow them to put the type system they are contemplating. Mr. Arakelian-This is an over big system that we designed to be overly safe. Councilman Boor-I am sure you are fine, I look at the size of the property as long as you do not have clay there if it was clay you would have to be two hundred feet away. Councilman Strough-Questioned if there was an association? Mr. Arakelian-No, privately owned. Supervisor Stec-I am hearing a consensus of the Board what I will do we will contact Barton and Lougidious and tell them to expect a call from your agent. Supervisor Stec-Special Town Board Meeting 6:30 P.M. on October 24, 2006 RESOLUTION ADJOURNING TOWN BOARD MEETING RESOLUTION NO. 511, 2006 INTRODUCED BY: Mr. Tim Brewer WHO MOVED FOR ITS ADOPTION SECONDED BY: Mr. Roger Boor RESOLVED , that the Town Board of the Town of Queensbury hereby adjourns is Special Town Board Meeting. rd Duly adopted this 23 day of October, 2006 by the following vote: 816 SPECIAL TOWN BOARD MEETING 10-23-2006 MTG. #43 AYES: Mr. Boor, Mr. Sanford, Mr. Strough, Mr. Brewer, Mr. Stec NOES: None ABSENT: None Respectfully submitted, Miss Darleen M. Dougher Town Clerk-Queensbury