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1998-01-12 SPECIAL TOWN BOARD MEETING JANUARY 12, 1998 7:00 P.M. BOARD MEMBERS PRESENT Supervisor Fred Champagne Councilman Richard Merrill Councilman Theodore Turner Councilman Douglas Irish Councilman Pliney Tucker TOWN COUNSEL Bob Hafner Mark Schachner TOWN OFFICIALS Ralph VanDusen, Water Superintendent Supervisor Champagne called meeting to order... introduced Mr. Keith Manz, Director of Planning and Engineering from the Town of Wilton. 1.0 KEITH MANZ - TOWN OF WILTON (Mr. Manz passed out copies of the position description to the board along with a Town of Wilton Quality of Life Notebook) Mr. Manz spoke to the board regarding his position as the Director of Planning and Engineering for the Town of Wilton, noting that he wrote the description five years ago prior to taking the position... Primarily what I do has to do with planning and zoning even though my position heads up the planning department, building department, engineering department and zoning department. I'm more or less, the top ranking official at town hall on a full time basis. The engineering review of subdivision and site plans takes up about a third of my time. The special engineering and planning related projects that the town board directs me to do, takes more then fifteen percent. Lately, we've had a lot of road improvements where I handle going out to bid, actually getting the RFP out and getting the quotes in for the design and then I also follow up with the construction. Administrative duties, between five and ten percent. Attend all meetings for both the Planning Board and Town Board meetings. Inspections, probably fifteen percent of my time, mostly Spring, Summer and Fall months and being on call twenty-four hours a day, three to five percent. Generally speaking, about five years ago the town decided there was enough development and growth, that rather then hire an outside consultant, they decided to hire an engineer directly. My salary is covered by all the fees for the inspections in the field and the engineering reviews. In fact when I was hired, we cut the review fees by about forty to fifty percent that had been previously charged. There was savings to the developers which was a plus and there was more in-house control of the review. The City of Saratoga Springs has an engineer and they also have a planner. The key is to get the right person because they have to do so many things, go out in the field, deal with developers, review plans and attend meetings. You need someone that has philosophy of the town and can do a professional job. We still use outside consultants on really large projects where I can't do the review and in fact, it's in our code book that says, if we have additional review that I can't do, environmental or SEQRA related review, then the developer has to reimburse the town for that cost. It's all spelled out in the review fee schedule and everything is a fixed fee. As far as inspections, it's based on per linear foot of road or commercial, the square footage of building and it's very easy from an administrative standpoint. Town Board held brief discussion... Supervisor Champagne thanked Mr. Manz for his input. 2.0 MOREAU WATER CONTRACT Counsel Bob Hafner noted that he was asked to be here to review the Moreau Contract for the benefit of the new board so that they may be brought up to speed... For background, I would explain this contract presupposes that up until the expansion of the water plant, we had around three and a half million gallons worth of capacity. After the expansion, we added eleven and a half million gallons of capacity to end up with fifteen million gallons of capacity. That's relevant for some of the portions of this agreement as we'll see as we go through. To give you an overall structure, what this contract is about is, we have fifteen million gallons of capacity and we use much less then that for our town currently and what we're doing is seeking to have other municipalities help pay for our facility to pay for a portion of the capacity that we don't currently need for our own residents. When we had the eleven and a half million gallons of capacity, we paid a certain price for it and it ended up being about a dollar six per gallon of capacity. So what we are trying to sell to Moreau in this contract is, there's two parts to it, first is our capital cost. That's the dollar six per gallon of capacity and that is what the Town of Queensbury has invested in the facility. We are trying to get someone to help us pay for our capital and in doing so, will have right to us reserving an amount at our facility that they can use, up to and that amount that they're looking for is a million gallons. The second thing that we're selling is the flow. While they have a capacity that we are going, under this contract, we envision letting them use up to, they may only use three hundred thousand gallons per day. But that three hundred thousand gallons per day, they're going to be charged a cost for it, the cost of production and that's really what this contract is getting at. First, getting paid for our capital and second, how are we going to calculate and how are we going to get paid for the cost of production that we have. The idea is by having them help pay for the cost of production, we have more people paying for what is mostly fixed cost. By having someone else come in and help pay the cost of operation, we're getting contributions towards our expenses which allows the cost to Queensbury residents to hopefully be less. . . reviewed contract, article by article... section 2, The Facility - this details the facility, what we have, going through the expansion of the eleven and half million gallons recently and the reason, is to explain that they're buying one million out of the eleven and a half million. They're not getting the lower cost or our first three and a half million which we paid for a long time ago. Also in section 2, it mentions that there is one part that has not been done yet, the two motors which we have not put in the plant because they're not needed until the flow exceeds the eleven and a half million gallons. In section 2B, deals with how we're going to go through the mechanics of being paid, having them contribute to that. Sections C and D deal with what happens if we have to have future upgrades. Section E says that Queensbury's responsibility is to construct all water lines in Queensbury, this includes our current system plus it includes the expansion of the lines along Big Bay and Big Boom to connect to the Hudson River bank. Councilman Tucker questioned whether there was an estimated cost for the expansion of those lines? Mr. Ralph VanDusen, Water Superintendent noted the estimated cost for the Big Bay, Big Boom is three hundred and seventy thousand dollars. Councilman Tucker questioned where that money is coming from to put the lines in? Counsel Hafner-We understood that the town was planning to take part of the capital costs that has to be contributed by Moreau to pay for those costs. Councilman Merrill-That's part of the buy-in, correct? Counsel Hafner-Yes, that's part of the buy-in. Councilman Merrill-Which would be used to put the pipe in the Big Bay pipe in and to pay for half the river crossing, correct. Counsel Hafner-Exactly. Councilman Merrill-So, they're not really buying into the plant. Counsel Hafner-They are, under the contract, buying in for two twenty-thirds of the plant. We are deciding to use part of the contribution to pay costs that could have been charged to them or could have been charged to us. Again, this is only a tentative contract, we had agreed to pay those costs. Councilman Merrill-But these costs or improvements are at no benefit to Queensbury, is that correct? The river crossing has no benefit to the Town of Queensbury. Mr. VanDusen, Water Superintendent-As far as supplying water, that's correct. There's a financial implication, obviously, the economies of scale, the Big Bay, Big Boom would have a limited, very limited benefit to the people in that area. Counsel Hafner-One of the determinations that the board has to make, deals with precisely those costs and there are two memos that we've done to the board which we'll make sure that the board gets shortly which details the determination that they have to make. The prior board had and they got financial input from Ralph and Henry that I believe confirmed that. Supervisor Champagne-The theory being here is that if Queensbury is going to sell water, then obviously, at least from the previous board's opinion, there's an obligation on the part of the town to at least get water to the town's borderline. By taking a portion of that five hundred and sixty thousand and doing the Big Bay and Big Boom and applying that also to half of the river crossing with the understanding that the other, if they buy-in for a million, they're coming up with the cash for the first five hundred thousand, the second five hundred thousand will be carried over the course of the next twenty years at fifty cents a thousand gallons. If you apply that fifty cents a thousand gallons over the next twenty years, you come up with just over a million dollars. If you're looking at your initial costs going in, then the answer would be, you're right, Queensbury is not experiencing any great benefit. If you apply the magnitude of the users, then the Queensbury user by adding another three hundred thousand or a half a million to Moreau, then that's certainly going to benefit the Queensbury user in terms of their cost of water. Councilman Merrill- I guess my concern is the citizens in the water district are, in a sense subsidizing this project. That's my concern. Councilman Tucker-Mine too. Councilman Merrill-I've got to think it through further but I just want to get an understanding of this because Moreau will not be truly buying into two twenty-thirds, their fair share. Counsel Hafner-Section 3, Facility Management - Queensbury agrees to operate the plant properly. Section 4 deals with the river crossing and it deals with the need for the river crossing. The cost of getting the water from our side of the river to their side of the river is fairly expensive, it's around six hundred and twenty thousand dollars based on our engineer's estimate. What the previous Town Board tentatively agreed to after much discussion was to split the cost. To basically, effectively pay the cost of getting the water to the border and pay half of the cost of the river crossing and get it to the middle of the river which it then becomes the Town of Moreau. Each side agrees to pay their share of the river crossing under this section. Moreau has the responsibility for getting the permits and we agreed to work with them. They wanted to be the party acting because they're under the consent order and they thought it might be easier for them where they've been ordered to provide the water to get the permits. C says allocate the cost fifty, fifty. D, deals with maintenance and the bottom line is, each side agrees to pay half of the cost of maintenance. Each side agrees to provide liability insurance in case there should be any accidents with respect to the river crossing. Section 4F deals with guarantee flow. This was something that Moreau required that we guarantee and we put it based on our engineer's statements. Section 5, Moreau Connection. There are going to be two meters, one meter on each side of the river. They have the right to have a bypass on their side because they do not envision using the meter very often except to check to make sure that our meter is accurate. If there's a difference between the two meters, it's supposed to be the average of the two meter readings. The meter that's on our side of the line will be the meter that determines what we're going to bill them. However, if their meter is hooked up and it's different, we will bill them affectedly on the average. Each side has the right to access the other meter to see that it's operating right and see their records. Moreau is going to supply a check valve at it's own cost and we're going to install it because it's going to be on our side of the river. Moreau is responsible for it's system, we've already said that we're responsible for our system. G, on page 10, all the tests that we do, dealing with water quality, they have a right to copies of. Section 6, Facility Operation - this is another place where we state that we'll operate the plant in accordance with good practices and those rules that DEC, DOH and EP A may place upon us. We agreed to maintain our water system which we're going to do anyway. Section 7 - this is in there in case we should have some emergency situation where the production of water for some reason is decreased and what it says is that Moreau will impose the same restrictions that we impose on our own residents. Section 8 is one of the hearts of the contract, this is where we deal with the costs. Section 8 deals with the capital contribution which is sort of broken into three parts. The first, they're going to pay us half of the cost of the river crossing before we do anything, before we provide any water. Then there's the capital cost associated with the million gallons of capacity. The capital cost for that is one million sixty thousand dollars. They agreed to pay them in two parts, first the payment up front for half and that is the five hundred and thirty thousand dollars which will purchase them five hundred thousand gallons per day of reserved capacity. We made it very clear there will be no water delivered until we had these two amounts. We received a letter from the Town of Moreau's counsel this morning, most of the comments were minor but one important substantive comment he made, was the Town of Moreau wanted to break down that five hundred thousand gallons into two, two hundred and fifty thousand gallons so that they would not have to buy the second until they needed it. It would be our recommendation to let the contract stay as it is but it's the Town Board's decision. The second is the second five hundred thousand thouand gallons, what they wanted so that they did not have to go and bond their capital cost, they wanted to pay it over a twenty year period. The other cost that is included in what they were going to pay is five cents per thousand gallons transmission charge. B on page 12, this is where we allocate the cost of our operation maintenance budget. C, Future Reconstruction - this section acknowledges that the physical part of the plant might need replacement and it says, once replacements are needed, they will pay their fair share. Their fair share going forward after they buy that one million out of our total capacity of fifteen million, they will pay one-fifteenth of our reconstruction costs. If they buy more capacity, their share will go up. D, there's a late interest charge if they do not pay within thirty days and that's a ten percent charge, and fifteen percent after sixty days... Town Board held discussion, disagree with ninety days and recommended thirty days. Section E, as they come on line, the town agreed to allow them two hundred and fifty thousand gallons per each quarter of the first year of the contract for them to flush out lines as they expand throughout more of the town. That charge will not be a charge directly to them, it will be a charge as part of the operations and maintenance costs that is allocated among all the water users. Section 9, Expansion - this is Moreau's right to buy another million gallons worth of capacity. The way that it is worded is, they have a right of first refusal. Section 10, Moreau rights to consultation, we promise to keep them informed about our facility in any reconstruction plans that we have and to give them access to financial information. Section 11, Records - goes through the type of records that we will keep and what they have access to. Section 12 deals with the term. A, says it's a twenty year term and that is the initial term of the contract. B is that they have a one, twenty year renewal option. Section 13 - once we get the water across our border to the Moreau river bank, it's their responsibility. Section 14 - acts of God, something that would affect the river crossing or affect us providing them with water, then the contract is excused for that type of act of God and that we'll fix it as soon as possible. Section 15 - it says where notices have to be sent. Section 16 - normal contractual language that you put in a contract that if the Town of Queensbury waives it's rights to enforce a provision under here once, it doesn't mean they've waived it forever. Section 17, Contingency. The whole contract is contingent upon Moreau having a settlement with General Electric and we have no obligations until they have that settlement. Section 18 - again, legal boiler plate. Section 19, Governing Law. Section 21 says that these contracts can be signed in counterparts which means that they can sign a copy, we can sign a copy and together they make one binding contract. Section 22 is a very important contractual provision that this is the entire understanding and negotiations for this contract have been going on for a very, very long time and during the term of negotiations many different ideas have been bandied back and forth, when this is signed, it doesn't matter what was said verbally, what the agreement was before, the terms of this contract control and it doesn't matter what else was promised. It's got to be in the contract if we want to enforce it. Supervisor Champagne-Okay, any other questions of Bob? I have here on the agenda that we move into Hudson Falls Water Contract. We're running late, would the board agreed that we could move into the litigation piece here and as much public information as necessary. .. I really think we're going to need to Hudson Falls at another session. Councilman Merrill-What's the timing on Hudson Falls? Counsel Hafner-They have applied for funding and we're expecting to maybe get funding sometime in late spnng. Councilman Merrill-So we've got time and there's no river crossing involved here. I really don't have the problem with Hudson Falls that I do with Moreau. 3.0 HUDSON FALLS WATER CONTRACT Supervisor Champagne requested to hold this discussion at a later date. DISCUSSION - TOWN WEB PAGE Mr. John Strough, Queensbury teacher introduced Jeremy Hammond, a Queensbury Student whose responsible for the football and basketball web pages. .. together they spoke to the board regarding the proposed town web page... noted the costs involved for the first year, setting up the domain and the web page is estimated at five hundred and fifty-nine dollars... Town Board held discussion... Councilman Irish noted that he would like to see the design before actually spending any money. .. Mr. Strough invited the board to visit him at school to see the different web pages available and the football page... Town Board agreed to visit Mr. Strough and continue discussions before making a decision. 5.0 LITIGATION Counsel Schachner gave review and status report to the board on the following litigation cases: FULLER ROAD - the town and the codefendants, the Rowlands who are the property owners have won twice at the Supreme Court level... the plaintiffs have appealed Judge Dier's recent decision to the Appellate Division... they need to perfect the appeal, file the briefs and the final papers on the appeal and it will then be up to the town and the Rowlands to respond to those and go to the Appellate Division and participate in the appeal if you wish to do so. Judge Dier's decision was dated October 24th, we received it on October 27th and we gave you copies of that decision. COLES WOODS ANNEXATION - the three Judge panel has been appointed... there's been correspondence... the board's orders to us previously were to seek to postpone trial until 1998, we've succeeding in that scheduling and now the earliest the trial would be is the later portion of the month of March. TOWN VS. AMG - the auction is scheduled for January 20th... we've been involved in a whole flurry of activities that I think the Town Board members have all received copies of a bunch of correspondence on, that's largely involved in chasing down the collateral inventory, scheduling the auction, making sure the appraisal occurs and a bunch of things like that. .. also been involved in the investigation to start the civil litigation which we anticipate starting soon. TOWN VS. DONALD WHITE (Video Broker) - The code enforcement action relative to the video store in the Sokol's Plaza... There was some jockeying around as to whether that would proceed in Town Court or Supreme Court, the former Town Board urged us to try to take that action to Town Court and we were successful in getting that into Town Court. There's going to be a trial scheduled, it has not yet been scheduled. JOHN SALVADOR VS. TOWN ZBA - Relative to what we call the cabin on the lake project. The Zoning Board of Appeals denied applications by the Salvadors and upheld determinations by John Goralski as the Zoning Administrator. The Salvadors took an article 78 proceeding against the Zoning Board of Appeals. We prevailed in that action in Supreme Court and the Salvadors have filed a Notice of Appeal indicating that they intend to appeal that decision to the Appellate Division. They haven't done that yet but they filed the Notice of Appeal. MR. PALMER VS. TOWN ZBA - An article 78 proceeding, this relates to some variances that the Zoning Board denied for a project I believe on Richardson Street and this case has not yet been argued. It's scheduled to be argued in Supreme Court in front of Judge Dier on Friday, February 6th. Referred to the list of several dozen Article 7, Real Property Assessment Cases. .. the three of the highest value that are listed is the Niagara Mohawk case, the CR Bard case and the Glens Falls Cement Company Case. All three are in different stages of negotiations in which counsel, the Assessor's Office, counsel for the School District is impacted and the attorneys for the petitioners are involved. All three have some significant chances of settlement if the Town Board wishes to settle them and obviously, as you know, any settlements are subject to your approval formally by resolution as a Town Board. WUNDERLICH VS. TOWN - The matter relating to the work that was done at and under Exit 20 of the Northway relative to the water transmission mains. That matter went to arbitration because the contract entered into between Wunderlich and the town required mandatory arbitration. That arbitration took place over a course of five days starting in the summer, concluding last month. The arbitration has been concluded and the decision of the arbitrator is pending. SUPREME COURT ACTION AGAINST KEITH HARRIS - Relative to activities occurring on Pickle Hill Road and the previous Town Board asked us essentially to keep that action on hold if we could and we have done so and it's essentially on hold in Supreme Court. TOWN AGAINST MORSE ENGINEERING - This is on some other engineers relative to the drainage in the Queensbury Forest Subdivision. Similar, the former Town Board asked us to keep that on hold in Supreme Court and that's where it is. HOFFMAN VS. TOWN - This is what we call the Indian Ridge litigation. In that case, the non-municipal defendants, meaning Mr. Vasiliou and Mr. Farone have appealed Judge Ferradino's decision to the Appellate Division. The previous Town Board instructed us not to participate in that appeal so we are not participating in that appeal. DISCUSSION - FULLER ROAD LITIGATION Counsel Schachner - You should all have copies of a couple of memos and most importantly Judge Dier's decision... the decision is dated October 24th, it runs through a series of claims by all the parties and there's also been a newspaper article in the Post Star between last meeting and tonight that I think fairly accurately characterized the decision on a variety of grounds. The plaintiffs have taken their appeal as is their absolute right to do so to the Appellate Division and right now as we sit here, the ball is in their court to do what is called perfect the appeal which means finalize the appeal papers. Once they do that, it will be up to the town and or the Rowlands to participate in the appeal to the extent that we wish to or they wish to. Town Board agreed to open the floor for audience participation... \Mr. Paul Abess - Brendon's article was very good, I think the only misleading thing which I called him on and he agreed was the impression that the Rowlands needed Fuller Road closed to meet setback requirements which was not true. I want to make sure that you know that, the road was not closed so the Rowlands could build a house. I know for some of the newer board members there's been some talk about the safety of the road, the road was closed for safety purposes and that is not true either. After checking with the Warren County Sheriff and New York State Police, there's no record or they have no recollection of any accidents, any vehicular accidents occurring on any section of Fuller Road. I'd like to give you my take on it and it's not really intended to be negative. How I see it and I've gone through the minutes of all the Zoning, all the Planning and all the board meetings, I saw that the Rowlands wanted the road closed for their own personal gain. I saw Paul Naylor wanted the road closed to decrease his maintenance responsibilities. I saw the previous Town Board, in trying to be helpful, to accommodate both, without public input unknowingly, I believe unknowingly, I feel exceeded your legal authority. I think the previous Town Board and their attorney reacted to the citizens resistance of Fuller Road's barricading, adopting a win at all cost attitude and I think that's got us where we are today. What I would like to ask and I know some of the people behind me would agree, we would appreciate knowing how you each feel about this, about spending taxpayer's money in order to keep Fuller Road closed to the public and of course, now it's the Rowlands exclusively. Also, I would like to you to be cognizant of the fact that Patricia Wadkins who was the Rowlands former attorney has told me that the Rowlands have title insurance which means that, I'd like to see them go it alone. If they believe that that's their road, I'd like to see them go it alone, their title insurance should cover any costs incurred. Mr. Jeff Lynch - Noted that he spoke in the past with both Carol Pulver and Supervisor Champagne when this issue first came to the public. .. they expressed their feeling that it had been reviewed by Mr. Dusek, the attorney at the time, it was the opinion that it had been done legally and that if we didn't like it, that we could sue the town. I said, all I ever wanted to know was, paraphrasing what was in the article, was it legal or not. I mean if it was legal, then I guess there's not a whole lot we can do about it. Echoing what Paul was saying, what the town seems to be doing is, everything in their power to keep the real issue from being decided on and I think that's really unfortunate. I think that's unfortunate for the town to take that position because it seems like there's been an awful lot of money spent to avoid getting down to the real issue, was it or wasn't it right. I gather from the article that a number of the new board members feel that that is the issue and that should be decided and I'm hoping that the board decides to do that. Bob Schultz - There's the law and then there are the facts. I don't think there are any material issues of fact. I think the facts as we've laid them out are not in question. Obviously, there's a difference of opinion... All we're asking again, is that you, if you are going to be on appeal, if you're going to respond, that you let the Appellate Division know that there are no material issues of fact and in spite of your reservation, you would like them to reach the merits. Counsel Merrill - I would support Mr. Schultz's position, I don't feel we should be party to the case. Town Board held discussion regarding whether to continue discussions in open session or whether to adjourn to executive session... agreed to discuss at a later date in Executive Session. Mrs. Betty Monahan - I would caution the board that you discuss very carefully with Mark that you decide to give up A, your legal rights, you don't set any precedence for any actions this town may have coming in front of it in the future and that would be the concern that I have sitting here as taxpayer. Supervisor Champagne referred to the Coles Woods Annexation litigation and noted that the question was raised whether or not discussions have taken place with the new Council for the City of Glens Falls and the answer to that is, there has been some discussion and the discussion kind of centered around, let's get this thing off the table and get on with what's important between the town and the city. Obviously, that hasn't happened at this point. So, we will make every effort to get back to the Mayor's Office and set up a meeting. Councilman Irish - questioned Counsel Schachner if there's been a determination on Birdsall Road? Counsel Schachner - we've made an opinion on Birdsall Road. Councilman Merrill - requested a written opinion. Counsel Schachner - agreed to get that to the board. Mr. Roger Boor - Referred to the Indian Ridge litigation and the board's decision not to continue with the litigation... would like to ask the board for a letter that would state, as you said, it was a mistake and that you do in fact believe that a Full Environmental Impact Statement should be done, should a project of this size be done so that we can present that when we defend our appeal? Supervisor Champagne - Our attorneys have sent a letter to your attorneys indicating that the town is out of it. .. let the courts decide, I don't think it would be appropriate to go beyond that. Counsel Schachner - For what it's worth, you wouldn't be able to submit such a letter in the Appellate process anyway because it's not part of the record in the court below. 4.0 UNION CONTRACT RESOLUTION CALLING FOR EXECUTVE SESSION RESOLUTION NO. 32, 98 INTRODUCED BY: Mr. Theodore Turner WHO MOVED FOR IT'S ADOPTION SECONDED BY: Mr. Douglas Irish RESOLVED, that the Town Board of the Town of Queensbury hereby adjourns from Regular Session and enters Executive Session to discuss litigation. Duly adopted this 12th day of January, 1998, by the following vote: AYES: Mr. Tucker, Mr. Irish, Mr. Turner, Mr. Merrill, Mr. Champagne NOES: None ABSENT: None RESOLUTION TO RECONVENE RESOLUTION NO. 33, 98 INTRODUCED BY: Mr. Theodore Turner WHO MOVED FOR IT'S ADOPTION SECONDED BY: Mr. Richard Merrill RESOLVED, that the Town Board of the Town of Queensbury hereby adjourns from Executive Session and enters Regular Session of the Town Board of the Town of Queensbury. Duly adopted this 12th day of January, 1998, by the following vote: AYES: Mr. Merrill, Mr. Turner, Mr. Irish, Mr. Tucker, Mr. Champagne NOES: None ABSENT: None Town Board held discussion regarding reorganization of town departments. RESOLUTION TO ADJOURN MEETING RESOLUTION NO. 34, 98 INTRODUCED BY: Mr. Theodore Turner WHO MOVED FOR IT'S ADOPTION SECONDED BY: Mr. Fred Champagne RESOLVED, that the Town Board of the Town of Queensbury hereby adjourns. Duly adopted this 12th day of January, 1998, by the following vote: AYES: Mr. Turner, Mr. Irish, Mr. Tucker, Mr. Merrill, Mr. Champagne NOES: None ABSENT: None No further action taken. RESPECTFULLY SUBMITTED, DARLEEN M. DOUGHER TOWN CLERK TOWN OF QUEENSBURY