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1991-07-22 SPECIAL TOWN BOARD MEETING JULY 22, 1991 6:05 P.M. MTG#30 RES. 391-393 (PLAN/BD RES.) BOARD MEMBERS PRESENT Stephen Borgos-Supervisor George Kurosaka-Councilman (entered meeting after executive session) Marilyn Potenza-Councilman Ronald Montesi -Councilman Betty Monahan-(Councilman )entered meeting after executive session TOWN ATTORNEY PAUL DUSEK PLANNING BOARD MEMBERS PRESENT Peter Cartier, Chairman Nicholas Caimano James Martin Carol Pulver Edward LaPoint Timothy Brewer James Hagan SUPERVISOR BORGOS called meeting to order. RESOLUTION CALLING FOR EXECUTIVE SESSION RESOLUTION NO. 391, 1991 Introduced by Mr. Ronald Montesi who moved for its adoption, seconded by Mrs. Marilyn Potenza: RESOLVED, that the Town Board of the Town of Queensbury hereby adjourns from Regular Session to enter Executive Session for the purpose of discussion regarding Personnel Matters with the Queensbury Planning Board. Duly adopted this 22nd day of July, 1991, by the following vote: Ayes: Mrs. Potenza, Mr. Montesi, Mr. Borgos Noes: None Absent:Mr. Kurosaka, Mrs. Monahan Councilman Kurosaka and Councilman Monahan entered meeting. RESOLUTION CALLING FOR REGULAR SESSION RESOLUTION NO. 392, 1991 Introduced by Mr. Ronald Montesi who moved for its adoption, seconded by Mrs. Marilyn Potenza: RESOLVED, that the Town Board of the Town of Queensbury hereby adjourns from Executive Session and enters into Regular Session of the Town Board. Duly adopted this 22nd day of July, 1991, by the following vote: Ayes: Mr. Kurosaka, Mrs. Potenza, Mr. Montesi, Mrs. Monahan, Mr. Borgos Noes: None Absent:None DISCUSSION REGARDING LEAD AGENCY OF DIEHL REZONING Supervisor Borgos- The purpose of this meeting this evening is to try to resolve a long standing problem related to which one of the two groups here, the Planning Board or the Town Board will assume the lead agent roll in review of a particular request for rezoning on upper Sherman Ave. Much has been said in the press about this, much has been said at the Town Board meetings and Planning Board meetings if you have read the minutes. I think it is good for the public to get a real quick review from our Town Attorney who has in many respects been caught in the middle of this, certainly has done a great deal of research on the subject ...introduced Mr. Dusek Attorney Dusek-I have from time to time spoken to the various boards and given some initial consultation, to bring us up to date. First of all the situation as the Supervisor has explained a lead agent for SEQRA purposes must be agreed on. The SEQRA law provides that of all the potentially involved agencies and involved agencies would mean any agency that would be authorized to approve the plan or issue a permit of some kind of all the involved agencies and in this particular case a rezoning project one of them has to be the lead agent which would be primarily responsible for going through the SEQRA process getting the applicant through the SEQRA process. Usually the lead agent status is agreed to among the parties and is really not a major issue. In this particular case the two boards have indicated that each one of them would like to be the lead agent. As both boards know I have explained in the past that I have felt slightly uncomfortable because obviously as Town Attorney I represent the Town Board and I have also from time to time represented the Planning Board and on a regular basis Karla Corpus does sit in on the meetings and render opinions. Normally we do not have any problems because you both are doing different types of issues so we do not run into conflict situations. In this particular case I was concerned so I alerted everybody to that concern and I have tried to proceed as carefully as possible and will continue to do so tonight. One of the concerns that was on my mind as I started to prepare for tonight to give you this advice because I know that there is a sensitivity that I might be more persuaded by one Board over the other I know that has been a concern that has been raised in the past so in preparing for tonight just so you know I at this point I am speaking to the Planning Board and I am speaking to the Town Board as the Town Attorney for the Town of Queensbury at that moment. Why do I say that? I am just emphasizing that to you now because I see myself as Town Attorney as giving counsel to the Town Board as well as officers and other boards of the town. But I also have a role and I think a responsibility to the Town itself, the corporation the municipal corporation itself. So it is in that responsibility and in that capacity that I speak to you tonight I am trying to speak objectively in order to hopefully assist in bring this matter to an easy resolution tonight. The SEQRA regulations provided for by DEC indicate that once you get to the point where lead agency cannot be agreed upon anybody the applicant any involved agency can request the DEC Commissioner to make a decision as to who should be lead agent. The regulations also set forth the criteria that is used by DEC in making the decision and just to read for you briefly the criteria which I know at one meeting I read to the Planning Board, the following criteria in order of importance shall be used by the Commissioner to designate the lead agency 1. Whether the anticipated impact of the action being considered are primarily State wide regional or of local significance, then there is some bracketed material but in that particular case that does not apply because this is a local problem there is no State organization trying to claim lead agency status. Second criteria, which agency has the broadest governmental powers for investigation of the impact of the proposed action? Third criteria is which agency has the greatest capability for providing the most thorough environmental assessment of the proposed action? The other thing I might stress is that in reading that it says the following criteria in order of importance so therefore criteria number 1 is more important than number 2, 2 is more important than number 3. In this particular case we have already isolated 1 because we do not have regional problem that is out we are looking at criteria 2. From reading the criteria my gut reaction is that the Town Board should be the logical choice for lead agency unless there is some compelling reason why they should not be. I asked Karla to dig up some more information for me and we were lucky to obtain a couple of decisions from DEC where they have actually looked these lead agency questions not on this particular case but on other cases. One decision is a little old it is 1986 the other is newer 1991. One decision dealt with the Town of Huntington Town Board and DEC, the local regional office were disagreeing. In that particular case the primary criteria that was looked at was number 1 where it was regional, local and they said it was local. But, what I found interesting in it is that happened to deal with a rezoning matter and the DEC made some very .....comments with respect to rezonings. It said in order for a project to be constructed as proposed the applicant must obtain a zone change from the Town Board and subdivision approval from the Planning Board. In considering the zone change the Town Board will have to assess the needs of the community for residential development vs the value of the site as open space. The appropriate density for any subsequent use. The decision on zoning must be addressed before any subsequent decision related to the construction of the site can be assessed. The importance of the zoning decision and the potential for that decision to modify or effect subsequent decision making at the site points to the Town of Huntington Town Board as the most appropriate involved agency to serve as lead agency. This wasn't a contest between the Planning Board and the Town Board but rather it was a contest between the Town Board and DEC but I think the points that they make about the Town Board being the most logical lead agency are certainly important to consider in this particular case. The other thing that the decision emphasizes and think that this is important for both boards to consider and that is, even though we said the Town Board should be lead agent the decision does not in any manner limit or minimize the responsibility of all other involved agencies to review the proposed action and assist the Town Board in completion of the environmental review process. If the Town Board chooses not to entertain a petition to rezone the site as allowed under Town Law such legislative decision would not be reviewable and they go on. So, the message there I think from the commissioner was that even though we are saying the Town Board is DEC regional office you still playa part here, you still have responsibilities you should assist the Town Board in their review to make sure the issues that you are concerned about from the SEQRA perspective get reviewed. In addition to the decision Karla had a conversation with Gail...an associate council with DEC she indicated that normally the parties do work these issues out themselves, which is what we are attempting to do here. Secondly she indicated that her opinion was the Town Board would probably get the nod to get lead agent. They normally have the broadest powers unless there is a good reason for DEC to change their mind they probably would go with the Town Board. At this point my only comments to both board would be this, that I think the Planning Board has indicated and rightfully so some very sincere sensitivity to environmental questions and making sure they get evaluated. I think the law provides an ample mechanism for them to address their concerns even if they should decide that the Town Board should be lead agent. The other thing I would like to say to both boards is based upon them my research based upon the information that Karla has been able to gather for me I have to honestly tell you I think that most likely if this thing were to go to DEC it looks to me that based upon everything that I have seen that DEC would probably say the Town Board would be lead agent. I have said this as the Town Attorney trying to be objective looking at the facts not trying to take a side if it had said Planning Board or she had said Planning Board down at DEC I would have said that to you. But that is not what, I am telling you exactly what I have researched and what I have heard. So hopefully this will help. Supervisor Borgos- There are two problems, one the immediate concerns of a very specific request on upper Sherman Avenue and the other is what about the future, the Planning Board in the minutes has taken the position at least the majority of them seem to be taking the position that for all rezoning cases the Planning Board would like to be lead agent, I think that should be discussed. In fairness to the particular applicant who is in front of us now, I think we should take care of that first. It is our hope that we we could sway one or two votes tonight and get the Planning Board to reconsider let us be lead agent and get on with this and then we could get into the discussion about the future. If we cannot the Town Board has made the decision that we will appeal to the commissioner we do not want to spend the money we do not want to provide money for the Planning Board legal counsel to spend the money we may if we have to and that will have to be discussed by the Town Board but it just seems like a waste. Mr. Jim Martin-Planning Board Member-I would just like to add I also called the State DEC I talked to the Office of Regulatory Affairs and they are the office that is directly associated with the Commissioner and they draft the commissioner determination on his behalf and subject to his review and change and comment. His comment was, I also asked for a history as to how these things typically went and he said he would be remiss to make a guess as to how it would go because every case stands on its own so therefore little insight could be gained by sighting any history on the matter. I delved further into it and I really do not understand why this has been looked upon as such an awful terrible thing. He made it sound as it was a very matter of a fact type thing if two Boards disagree DEC will then ask the Boards to make written justification as to why they should be lead agent the commissions receive that and within 20 days you have a decision. That's basically, there is no legal presentation to be made there is no, there is no need legal counsel not unless you wanted assistance in drafting that written response. Supervisor Borgos-Asked if an attorney would be necessary on both sides. Attorney Dusek-Noted that was a decision a client would have to make...in this case you draft a letter type application you submit any supporting documentation that you feel would back up your position and then you send it to the DEC Commissioner, all the parties do the same once the DEC Commissioner and his people have received it they will review it and if they need further information they will ask for it or they ask you to further justify various points and he renders a decision. Being conservative if one party has a lawyer then the other party probably wants to have a lawyer too. Mr. Peter Cartier-Planning Board-Refer you back to our May 8th meeting minutes, it is our contention at this point to let it go to DEC I am sure we are going to resolve anything here. Secondly, personally I do not feel this Planning Board needs an attorney to deal with this situation I think its straight forward enough that we can handle it ourselves as a Planning Board. The issue of getting legal counsel as fay as my concern is a non Issue. Mr. Martin-For me personally I know that there has been some annoyance among the Town Board that there has been comments from this Board saying there amy be a political tilt to your. Supervisor Borgos-I was not going to bring that up but that is officially in your resolution. Mr. Martin-I do not mean that as a negative comment when I say you decision may be politically titled, you are an elected Board and naturally you are going to have a concern for the political nature of a project. I am a planner by trade and I look upon the SEQRA process as an objective and technical process and I think we an an objective Board and especially on a planning related matter can best serve the SEQRA process. We deal with SEQRA determinations in our meetings sometimes 7-8 a night and 15 a month and we see the SEQRA process from a Planning standpoint, month in and month out we are now in the midst of a major review of the roller coaster draft EIS so that was my reasoning behind it and I am steadfast in that belief it is an objective process and therefore an objective Board that see's the planning issues of a rezoning. That is why I also agree with it not only for this project but projects in the future. Supervisor Borgos- This is the way the Town Board perceives it we have been dealing with the objective review subject of course to the fact that we represent thousand and thousands of people who have a chance to review our performance in terms of what we are doing every two years. The Planning Board could be on for seven years without any kind of review. We feel very objective we have very carefully, we think, carried out reviews of such projects as the West Mt. Project, Hiland, Earltown, lots and lots of others that we have gone into great detail and almost every month we do one or two almost every meeting we do one or two SEQRA findings ourselves, so we also feel that we have considerable amount of expertise in that area. That is where we are locked here. Councilman Potenza-I think at the last meeting when this was discussed as a Town Board it was my recommendation that we go onto the Commissioner ofDEC and let him make the decision and there was a request from the floor to perhaps let these town boards work it out one more time. Although I am not a Planner I have the availability of a professional planner and I just find it a very simplistic decision to make. If you read the criteria to the Town Board because we have the availability of all of the information that is needed. This is why it is hard for me to understand why the Planning Board for the first time in the history that I have sat on the Town Board has decided to take the lead agency status. Peter Cartier-The only comment that I would make, this is not that unique a situation if it were there would be no mechanism to deal with it and the fact of the matter is there is in place a mechanism. In terms of it goes to DEC and DEC makes a determination and all we are saying is lets make use of the mechanism that is available to us. Supervisor Borgos- Why use it if we could otherwise solve it in house. Peter Cartier-I do not see that happening tonight. Supervisor Borgos-Noted the three to three vote, last time you had someone that said he was new and not up to speed I would hope by now he is certainly up to speed in this matter. Peter Cartier-If you want to address the newest member directly feel free to do that. I am speaking for myself. Councilman Montesi-Behind the issue some of the Board members are asking why at this point? In all candor I recall a letter that the Planning Board sent to the Town Board and specifically said we certainly would appreciate if you put into place whatever you are going to call it an overlay zone for affordable housing or of it is for senior citizens but we would like to see you put that in place as quickly as possible for one reason, everytime you address a rezoning is some way, shape, form or matter you are degrading or dissolving the master plan. It was my feeling that you were going to put some teeth behind that request you let it set for a while we did get a draft statement from the Planning Dept. from Ms. Lee York, here is an idea look at it and review it, we as a Town Board have not done that todate. Is that one of the things that is bothering the Planning Board also... Mr. Caimano- What bothers me and I do not know what kind of teeth you want, you have...with the people who work for the Town if you do not get what you want from the Planning Dept. they work for you. If you do not like what you get from the Planning Dept. tell the Planning Dept. we cannot do anything about it, we have made the request I would like to see that otherwise we are in the same hassle everytime somebody comes up. Supervisor Borgos-We all want that we have not put it on the back burner... Peter Cartier-I think what Ron is referring to is that part of the difficulty we are having and my answer is no as far as I am concerned it is an entirely separate issue. Jim Martin-I am not using SEQRA as this wrench in the works behind this project and targeting this specifically. Councilman Monahan- I would just like a clarification for the people who do not know what is going on here, what we got from the Planning Dept. on affordable housing overlay zone has not even been critique by the Town Board so we are not saying that the work is not up to snuff. what we are saying is we have not taken the time to sit down and have workshop, they have done their part we have not done ours. Supervisor Borgos- The other issue is if you are truly concerned about the environmental impact and I think you are, I recognize the fact and this Town Board recognizes the fact that even if we do a rezoning you will still have site plan review control and final authority as far a environmental concerns. You will have all the authority needed as far a determining where any on site water retainage is any type of road layout networks all those things are totally within your power not subject to review by the Town Board, so I am wondering why if you still have that authority why you are seeking to get this authority. Peter Cartier-We are talking about two different things here, we are talking a rezoning vs a subdivision. Supervisor Borgos-Rezoning will only change the density. Peter Cartier-That is a major issue, a major environmental issue. Supervisor Borgos-In this particular case however what is being asked for is almost identical to what the entire surrounding neighborhoods are. Peter Cartier-I cannot comment on that because I am not familiar with that. I am not sure for me if that would be a justification for increasing the density of this area at least from the planning perspective. If the density is that high in that area there are some problems and I think we would be making the problem worse if we did something like that. Councilman Kurosaka-Addressing the Planning Board, you have made up your mind that those lots are not big enough how can you make an objective decision as lead agency when you have already made up your mind. We haven't as the Town Board. You have already reviewed it and made recommendations we are the Board that you make the recommendations to, we are the only people that can give a zoning change, how can you make an objective decision on a recommendation that you have already made? Peter Cartier-I think this board capable of making such an objective decision. Councilman Kurosaka-I do not understand it, I think it is a conflict of interest myself. Ed Lapoint-Would it be appropriate to just go back on the record and make another motion... (It was noted that the Planning Board is still in session) Councilman Monahan-As many of you know I am a real stickler on SEQRA and I really take them apart. I really thing the responsibility for SEQRA on a rezoning belongs to the Town Board because our responsibilities are much different and much greater than yours. Ours are really pertaining to we have to be more aware of social needs we have to be aware of long range impacts and I would just ask the Planning Board if! have seen you people work on a SEQRA review have any of your come to a Town Board meeting and watched the Town Board work on a SEQRA Review? Carol Pulver-I have, you are right you do take them apart, bit, by bit, by bit. You are very through. Peter Cartier-Is there anyone sitting on this Board who is willing to change his vote from the last time, if there is someone willing to change their vote then a motion is appropriate if no one is willing to change the vote then we are just spinning our wheels. Ed LaPoint - I would like to go on the record again myself, I do not think we should ask how we are going to vote before we make the vote. Nicholas Caimano- The record should be clear as to how the vote was and what the vote was on. Peter Cartier-Then if we are going to have a motion we are going to have to go through the scenario that we went through last time and that is to rescind our previous motion... (Attorney Dusek noted that the two boards could have a simultaneous meeting...the planning board had not adjourned from its meeting which started earlier in the evening...) (PLANNING BOARD) MOTION TO RESCIND INTRODUCED BY MR. LAPOINT SECONDED BY MR. CAIMANO Motion to rescind the motion of May 8th assuming Lead Agency Status for the Town Planning Board regarding P 1-91 the Diehl Change of Zone. Mr. Hagan-No Mr. Caimano- Y es Mr. Martin-No Mr. Brewer-Abstain Mr. LaPoint -Yes Mrs. Pulver-Yes Mr. Cartier-No Supervisor Borgos-As an outsider sitting in on your meeting at the moment we thank you I would just comment I do not know how long it is going to take for your newest member to do the research on this Issue. Tim Brewer-It's not that I didn't, I did not have any of the minutes as of yet because I was advised to stay out of it by our Planner. Supervisor Borgos- Y ou were advised to stay out of this by your Planner? Time Brewer-I won't say that I was advised to stay out of it I was asked if I wanted to get involved with it and I said at this point, I am not sure what meeting it was... Carol Pulver-I had asked that he have all the minutes to all the meetings Tim Brewer-I have not read any of the minutes of any of the meetings. Supervisor Borgos- When we appointed you, from that moment on you became a fully active, fully accredited member of that Planning Board. Tim Brewer-And this was prior to me being appointed, this started and I said that I would abstain from all voting on this issue. Peter Cartier-Normally what happens when we get a new member, Steve, is if there is any old business still pending, new members tend to abstain simply because they have not been involved in everything. Supervisor Borgos-I would agree with some of the detailed things related to specific project but something of the magnitude of this and with all of the publicity of this and with all the information available about this subject over such a prolonged period of time I cannot imagine anybody not getting involved. Nicholas Caimano-But in all fairness Steve, we have had the action here we have been around a year or more I do not think we should hang it on one new person I thing that is unfair, and I do not think we should do that. Mr. Brewer, we all have our own choke points and he is abstaining for his own good reasons. Supervisor Borgos-He is entitled to, under the law he may do what he wants to do. TOWN BOARD RESOLUTION RESOLUTION TO REQUEST DEC COMMISSIONER TO DESIGNATE LEAD AGENT RESOLUTION 393, 1991, Introduced by Mr. Ronald Montesi who moved for its adoption, seconded by Mrs. Marilyn Potenza: RESOLVED, that the Town Board of the Town of Queensbury hereby requests the DEC Commissioner to make the decision as to Lead Agent in the Diehl Rezoning request. Duly adopted this 22nd day of July, 1991. by the following vote: Ayes: Mr. Kurosaka, Mrs. Potenza, Mr. Montesi, Mrs. Monahan, Mr. Borgos Noes: None Absent:None On motion the Queensbury Town Board adjourns. (Town Planning Board) Peter Cartier-Asked the Attorney if they should have similar resolution..and questioned the forms to be used... Attorney Dusek-Noted that there is no forms, a letter form application and submit the documentation..you should entertain a motion on your board... MOTION REQUESTING DEC COMMISSIONER TO DESIGNATE LEAD AGENT INTRODUCED BY MR. CAIMANO SECONDED BY MR. MARTIN RESOLVED, that the Queensbury Planning Board hereby requests the DEC Commissioner to make the decision as to Lead Agent in the Diehl Rezoning request. Duly adopted this 22nd day of July, 1991, by the following vote: All in Favor On motion the Queensbury Planning Board adjourns....