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2009.05.14 " \ (Queensbury Planning Board 5/14/09) QUEENSBURY PLANNING BOARD MEETING SPECIAL MEETING MAY 14, 2009 INDEX Site Plan No. 50-2008 General Timber Tax Map No. 265.-1-28 1. WORKSHOP SESSION Discussion of Planning Board issues 4. THESE ARE NOT OFFICIAllY ADOPTED MINUTES AND ARE SUBJECT TO BOARD AND STAFF REVISIONS. REVISIONS Will APPEAR ON THE FOllOWING MONTHS MINUTES (IF ANY) AND Will STATE SUCH APPROVAL OF SAID MINUTES. o (Queensbury Planning Board 5/14/09) QUEENSBURY PLANNING BOARD MEETING SPECIAL MEETING MAY 14, 2009 7:00 P.M. MEMBERS PRESENT CHRIS HUNSINGER, CHAIRMAN GRETCHEN STEFFAN, SECRETARY THOMAS FORD DONALD SIPP STEPHEN TRAVER DONALD KREBS THOMAS SEGULJIC ZONING ADMINISTRATOR-CRAIG BROWN LAND USE PLANNER-KEITH OBORNE TOWN COUNSEL-MILLER, MANNIX, SCHACHNER, & HAFNER-MIKE HILL STENOGRAPHER-SUE HEMINGWAY MR. HUNSINGER-Okay. I'll call to order the meeting of the Town of Queensbury Planning Board for a Special Meeting, Thursday, May 14, 2009. TABLED ITEM: SITE PLAN NO. 50-2008 SEQR UNLISTED GENERAL TIMBER AGENT(S) KURT KOSKINEN OWNER(S) FRENCH MT. FOREST, LLC ZONING LC-10A LOCATION LAND LOCKED PROPERTY WEST OF FRENCH MOUNTAIN APPLICANT PROPOSES A TIMBER HARVESTING OF TREES 14" AND LARGER ON MULTIPLE PARCELS TOTALING +/- 318 ACRES IN THE TOWN OF LAKE GEORGE & QUEENSBURY ON FRENCH MOUNTAIN. TIMBER HARVESTING IN THE LC-10 ZONE REQUIRES PLANNING BOARD REVIEW AND APPROVAL. CROSS REFERENCE N/A WARREN CO. PLANNING 12/10/08 APA, DEC, ACOE, OTHER APA LOT SIZE 167.31 +/- ACRES TAX MAP NO. 265.-1-28 SECTION 179-6-Q10C KURT KOSKINEN & DENNIS PHILLIPS, REPRESENTING APPLICANT, PRESENT MR. HUNSINGER-My understanding is we're really not going to go very far, but I'll let you brief us on where we're at. MR. PHILLIPS-Where we are is that we've had a subsequent meeting with Lake George, and in our meeting with Lake George, we then went out onto the site with one of their Planning Board members and Tom Jarrett, their engineer who has been hired, and we've agreed to relocate the landing in Lake George, so that it is in a less conspicuous spot, and that's smaller, smaller than we originally proposed. So, we've gone back to the engineer, and the engineer is now doing the stormwater in Lake George for the re- located spot. Stormwater is particularly important there because that's our access on Bloody Pond Road, and we wanted to make sure that there would be no flumes, plumes of water going down Lake George Road as a result of this timber harvest. So we. expect that that's going to be done probably within the next two weeks and when we receive those revised plans, we'll submit those to both this Board and to the Lake George Planning Board. MR. HUNSINGER-Okay. I understood that the Lake George Planning Board had a meeting, since our last meeting, regarding Lead Agency status. MR. OBORNE-Yes, well, they had a meeting, but not with General Timber on the agenda. MR. HUNSINGER-Okay. MR. OBORNE-So that was obviously the reason for this meeting was in anticipation of the possible consent for Queensbury to take over as Lead Agency, but that didn't happen. 1 .; < :i ~ (Queensbury Planning Board 5/14/09) MR. . HUNSINGER-Right. I mean, obviously your revised plans will require a revised, or at least an updated Long Form. MR. PHILLIPS-Yes. MR. HUNSINGER-Okay. MR. PHILLIPS-Although I'm not so sure that the relocation of the landing is going to have any effect on the Long Form, in terms of what the timber harvest is. The other thing that we have agreed to do with Lake George, and it really is more of a Queensbury issue than a Lake George issue. In terms of the design of our temporary skid trails, we basically. have all of those trails,. and we did this before anybody even thought about it, but instead of the skid trails that we've designed being up and down vertically going up the hill, they go horizontally across the contour of the hill, which is a better visibility layout than if we went just straight up and down, and we don't expect that there's going to be any visibility issue because of the layout of the skid roads. The third thing is I think that we are evolving. We've talked with our forester who really is terrific, not our forester, but our logger, who really is terrific, and I think that we're probably evolving into a winter harvest, as opposed to a year round harvest, and, you know, many reasons for that, aside from the rattlesnakes, but it seems as though the winter harvest would be a time when there are fewer people in the Lake George basin. It's not the tourist season, and so that that just makes it easier for everybody to do an off season timber harvest, as opposed to something that could very well disturb the sensibilities of tourists in the middle of the season. So we're evolving in that direction, and I think probably by the time we get here the next time we'll be able to give you a commitment on that. MR. HUNSINGER-Okay. So, in terms of submission of new materials and a tabling resolution, What's the schedule? Have you submitted the revised information yet? MR. KOSKINEN-Probably within two weeks we'll have that, and then we have to give it to Lake George, and then they have to set a meeting for that, and then once they concur and feel. it's favorable in their ideas, then they would .send it to you, I guess. Then you'd have to set your meeting up. MR. PHILLIPS-It was recommended that we have a workshop with Tom Jarrett, who's the Lake George engineer, Dick Sipperly, who was the forester hired by Tom Jarrett, with Rob Hickey, and I think that Keith would probably be invited to that workshop, so that we have Dick Sipperly as the independent forester at the table making recommendations, along with Curt, who is our forester. So that we c.an address any other issues that may be out there that we're not thinking about right now. MR. HUNSINGER-Okay. Should we have our engineer there as well? MR. OBORNE-That probably would not be a bad idea. MR. HUNSINGER-Yes. I don't think it would hurt. Okay. Would you coordinate that, Keith? MR. OBORNE-Sure. MR. HUNSINGER-Okay. MR. PHILLIPS-And we thinkthat's a good idea. So, you know, we're willing to do that. MR. HUNSINGER-So will you have all of the materials ih by the 15th of June? MR. KOSKINEN-You would think that would be probable. MR. PHILLIPS-We would hope so. MR. HUNSINGER-Okay. MR. PHILLIPS-And then that would be in to Lake George, and then they have to have their meeting, and the" if they agree with it, I guess it would then come to you. So you're looking way in the future. MR. HUNSINGER-Yes. How. does the change in the project effect the SEQRA status and that determination? 2 (Queensbury Planning Board 5/14/09) MR. OBORNE-Well, it may change the amount of acreage that's dis~urbed., Just my understanding that the header's a bit smaller. So that would be something you d ~ant to update. As far as any plans that you're submitting to Lake George, pleas~ su~mlt them to us also at the same time, so we're consistent. It is a Type I SEQRA at this pomt. MR. TRAVER-I'm sorry. That would reduce, potentially, the impact, in terms of acreage, in Lake George, but the Queensbury parcel would remain the same? MR. OBORNE-That would be my understanding. MR. TRAVER-Okay. MR. OBORNE-It is the totality of the project on the Long Form is what we're specifically talking about as far as any reduction in acreage being disturbed. MR. TRAVER-So that possibly could have an impact on Lead Agency. MR. OBORNE-It could. MR. PHILLIPS-So, now that I think about it, we would amend the SEQRA because we are going to have a reduced area on our landing, and we're also going to have a reduced amount of moving dirt around in the landing as well. So, there will be a change in the project in that sense, a significant change. MR. FORD-And also impacting that possibly would be the realignment of the skid trails that you were mentioning before. MR. PHILLIPS-I think that the skid trails, probably for the most part, are going to be about the same. MR. KOSKINEN-They're about the same. MR. PHILLIPS-Certainly they're the same in Queensbury, and they only would be adjusted a little bit in Lake George, but they will show on the new plan being done by the engineer. MR. HUNSINGER-Okay. MR. TRAVER-Do we know what the history is, in terms of the timeline for a DEC decision on cases where there's a two party interest in Lead Agency? I know that's kind of a loaded question, I guess, but I'm just wondering if there's a. MR. HILL-I'm not sure. I think that's the only answer can give you at this point. It doesn't happen very often, and I can't recall the last instance where we were involved in Lead Agency dispute and how long it took. I can ask my colleagues and see if they have a recollection, and I can get back to you on that, but I don't have any independent recollection. I don't know, Dennis, if you have any experience. MR. PHILLIPS-This will be the first instance that I've ever been involved in where there's been a dispute. MR.TRAVER-Yes. MR. HILL-And it's still possible that the dispute may be resolved without having to go to the OEC Commissioner. At this point, we don't have an answer from Lake George yet. MR. HUNSINGER-Right. MR. TRAVER-Right, and now they know they're getting reduced impact because of the change in plan. MR. HILL-And you made an excellent point earlier. With the landing area being reduced, that certainly is something that could be pointed out to them that would seem to bolster any request that comes from you with regard to Lead Agency. So maybe a follow up letter to them saying that you hope to hear from them, and that you understand that the landing area is going to be reduced might be helpful. You may want to, Keith, do we know when their next meeting is up in Lake George? MR. OBORNE-I believe it's June 9th is what we discussed. 3 , ,. I (Queensbury Planning Board 5/14/09) MR. . HILL-June 9th was mentioned earlier.. Some time before the 9th, if, Dennis, if you have an idea of what the size of the landing area is, if that can be communicated to Keith, then maybe a request can go up from here, from our Board, to them, advising that you're aware that the landing area is being reduced from X acres to Y acres. There's less of an impact .. there, and they have your prior correspondence seeking their agreement to this Board being Lead Agency for reduction in the landing area, for them to support that, could they please get back to you on your request. MR. HUNSINGER-Okay. Well, is there anything else from the Board? We did have the public hearing tabled until this evening. Is there anyone in the audience who wanted to address the Board? PUBLIC HEARING OPEN MR. HUNSINGER-I didn't think so, but we will leave the public hearing open, and then, I guess, unless there's something else, I'll entertain a tabling motion. MRS. STEFFAN-Okay. I'll make a motion. MOTION TO TABLE SITE PLAN NO. 50-2008 GENERAL TIMBER, Introduced by Gretchen Steffan who moved for its adoption, seconded by Donald Krebs: This will be tabled to the July 21st Planning Board meeting with a submission deadline of June 15th. Duly adopted this 14th day of May, 2009, by the following vote: AYES: Mr. Traver, Mr. Seguljic, Mr. Ford, Mr. Krebs, Mrs. Steffan, Mr. Hunsinger NOES: NONE ABSENT: Mr. Sipp, Mr. Seguljic MR. HUNSINGER-Was there anything else? MR. PHILLIPS-No. MR. HUNSINGER-Okay. Well, we'll see you in a couple of months, I guess. MR. PHILLIPS-Thank you. MR. HUNSINGER-Yes, you're welcome. Okay. Our next item on the agenda is a workshop, and we did have a few items in particular to discuss. Paul, if you want to come up to the table. Are you Steve? STEVEN JACKOWSKI MR. JACKOWSKI-I am. MR. HUNSINGER-Why don't you come up to the table. Welcome aboard. I understand you were here last week to the meeting that I was absent. So I'm sorry I wasn't there. MR. OBORNE-I do have copies of the Policies and Procedures if anybody needs them, and everybody has them, and fabulous. MR. HUNSINGER-Okay. Well, the first item that we. had under Policies and Procedures discussion was writing denial motions, and the main reason why we wanted to bring that up with Counsel present for discussion is because we. do.it so infrequently, and recently we did have a denial motion that we tried to advance and, you know, we ended up tabling it, and then, you know, taking time to draft a motion, and then come back a month later with the actual resolution. So we just wanted to kind of work through, you know, some of the issues, concerns that we should make sure we include, if there is a motion for denial, and I think that was, I don't know if there's anything else you wanted to add, Gretchen. I think that was one of your items. MRS. STEFFAN-I was just, you know, advice from Counsel on what should be in it. Should it be vague? Should it be detailed? 4 I (Queensbury Planning Board 5/14/09) MR. HILL-Well, first of all, I saw the item on the agenda, and it says writing denial decisions, and that's, we were very happy to see the word "writing", as the first word. Because when you're doing a denial, the chances, I think, are amplified, for a denial, that you're going to wind up with some kind of a legal challenge. By definition, you've got a dissatisfied applicant when you have a denial. So we think it's always best to be ~ery careful with regard to denial, and we think that it's always best to work from a wntten decision rather than try to do a verbal decision on a denial. When you're working verbally, you're usually working in the context of a meeting, and there'~ s~me ~ressure. It's usually a little bit hurried, and there's a greater chance that something IS gOing to be overlooked or that a reason is going to be overlooked or a critical fact is going to be overlooked and not included in a verbal motion. So we would always suggest, with regard to a denial, that you work off of a written draft. It doesn't have to be anything that Counsel writes, obviously. You can have a member, you know, one of your own members do a draft, and it's important to remember your timeline. You have 62 days from the close of a public hearing in which to render a decision. So you're not legally obligated to render a decision the same night that a public hearing is. closed. You usually be able to get through two meeting cycles, get to a second, or rather a second meeting from the one at which the public hearing is closed before you have to Tender a decision. Sometimes the calendar won't exactly work that way, but you meet twice a month at least anyway. So you'll have the opportunity to go through several meeting cycles before you'll be legally obligated to render the decision. So that allows time for writing, and we suggest that you take your time. We realize applicants are ina hurry, but taking your time produces, allow for a better decision, a more thorough decision, that will stand up better in court if an applicant files an Article 78 to challenge the Board's decision, and that's really the goal of good decision writing is to come up with a decision that is going to survive a challenge, an Article 78 challenge, if an applicant decides to take us to court and challenge our decision. So, what you want to do in the writing is to state very specifically your reasons for denial, and, Gretchen, to go back to what you said earlier, you want detail. You don't want vague generalizations. You want detail. It's important to cite the critical facts and to cite your reasons, because what the court is going to be looking at when it evaluates your decision if there's an Article 78 is, and I know you've all heard the magic words before, the court is going to look and see if your decision was arbitrary and capricious or, alternatively, if there was a rational basis for your decision. So by being specific, citing critical facts and stating your reasons with particularity, you help to get the court to the point where it can say, yes, the Board had a rational basis, here, for what it did. Your reasons, the reasons that you state for the decision that you made, have to be based on the criteria that is in the Code. So whether it's Site Plan or whether it's subdivision, you want to be looking at your criteria that you're all familiar with from your reviews of all the projects. Look at those criteria and determine whet.her or not the project satisfies them, and where it doesn't, when you're writing a denial it doesn't, you want to denote the particular criteria that are not being met, and cite those with specificity. Your decisions can't be based on your own personal likes or dislikes as a Board. They can't be based on whims or opinions. They also can't be based, as you know, again, a buzz word, they can't be based on generalized community opinion or opposition. If the room is filled with 100 people who say we don't like this project because we don't like this project, that's not a sufficient basis for you, as a Board, to decide to deny the project. A vote on a project, a decision on a project, is not a popularity vote. It's not the democratic process, at least not in so far. as the publiC is concerned. The fact that there's one person here opposed to it or 100 people or 1,000 people doesn't make a difference if all that is being said is, we just don't like the idea of this property being developed. If it's simply that they want it to remain a field, that's not a sufficient basis, the fact that they just don't like the idea of the project. If they can cite some specific reasons that you can consider, that's one thing, but if it's just generalized opposition, that's not enough. MR. HUNSINGER-Well, oftentimes the general opposition will kind of get wrapped into the comment that, it's not consistent with the neighborhood or it's not conducive to the neighborhood. So how much, you know, leeway. MR. KREBS-Let's talk about Polunci, a real situation. MR. HUNSINGER-Well, let's not, because it's a current case, but, I know what you mean, Don. Yes. MR. HILL-And just, in that regard, we should say, and I'm sorry, I should have opened up with this, We really should not talk about any specific projects that we're working on, simply because it's not fair to the applicants or the public to be talking about particular projects in this context, in the context of a workshop meeting, where neither the public or 5 (Queensbury Planning Board 5/14/09) the applicant is here to hear what's being said and hear what could be termed deliberatios. So, with that, I should have opened up with that. MR. TRAVER-Using your example of generalized opposition, let's say. there's 100 people that come in and they're opposed to the project, certainly it makes sense, if their objection is that they want it to remain a field, for example, but what if they cite something tangible such as noise, that fundamentally alters the nature of the, that would impact, because, in fact, now a noise, a nuisance noise is present that was not there before, or a large increase, say, in traffic, that now is going to be, than can be clearly connected to the impact of the type of . development that's being discussed,. in the neighborhood, that didn't exist before. What's the impact of those considerations? MR. KREBS-In relationship to what he is saying is if the public is sitting there and saying, this is going to create a noise problem, they have to have some factual information that says there will be a noise problem, not just their interpretation of the situation, and we often face situations where we have the public come to us and for one reason or another, they're upset about this, but they don't come with any factual information, even though we have 24 of them get up and talk at the table. There.'s no .real information. Now my feeling, and maybe I'm wrong, is that I need to look at the Ordinance and see what the Ordinance says, and then vote based on what the Ordinance says, unless there is some evidence from the public that can concretely prove their statement is correct. I mean, I can say I don't think we should have anymore development in.theTown of Queensbury. Is that a logical statement, and should the Board support that statement? I don't think so. MR. TRAVER-Well, I think that we wouldn't, if we were strictly interpreting the Code, I think a lot of applicants would be denied use of their property because quite often what we're doing is we're allowing development where strictly by the Code they might not be allowed to develop, and I think that's the fundamental purpose behind having a Planning Board, is to take the Code and then put it in the context of what's being proposed and in a specific part of the community and all of that kind of thing. Otherwise we wouldn't need a Planning Board. Right? MR. HILL-Well, I mean, your Code obviously, the land is the Town is zoned, and different areas obviously are zoned differently, and if a particular area in the Town is zoned for commercial development, the presumption here of this Board is that that area is a proper area for commercial development in the Town because .under the Comprehensive Plan and under the Zoning Ordinance, that area of Town has been designated for commercial development. So, then it becomes your job, with the specific criteria that are under the Site Plan law and the zoning development law, or, excuse me, the Subdivision law, to review specific projects and make determinations about whether those projects, as applied for, satisfy the criteria for site plan and/or subdivision, depending on what is being sought by the applicant, but to go back down toyour point. Yes, when people say, we're opposed to the project. It's going to generate noise and traffic, it would obviously be much more helpful to their cause, as opponents of the project, if we can cast those folks in that category, as opponents of the project, it would be much more helpful to their case to come into this Board and say, we, as a group of neighbors, got together, we retained an engineer, and we had an engineer do a noise study, or we got a traffic engineer to do a traffic study, and this is what their analysis shows, and here we're submitting the reports to you, so that you can have the benefit of it. Most, in most cases, of course, that doesn't happen. Opponents.usually don't get together and retain experts and so on, but your point is correct. Somebody simply saying, well, there's going to be a lot more noise out here now, or there's going to be a lot more cars. That, in and of itself, isn't enough. It may induce you as a Board to ask the applicant to escrow funds so that you, as a Board, can have your own traffic engineer or your own noise engineer, or whatever the field is, get an expert for that field, and have your expert analyze the applicant's submissions, and address whatever concerns that you may have with regard to the particular topic, whether it's noise or traffic or some other element, stormwater, whatever it happens to be, but the folks out there in the community, unless they offer more than a comment that, gee, this is going to be noisy, or, boy there's going to be more cars, that in and of itself isn't substantial evidence. It's not enough to carry weight, and to the extent that you're concerned about it, you know, the mechanism, I guess, to address those, because presumably the applicant is going to address something like that. Traffic is usually a big enough concern that the applicant's going to provide a traffic report. To the extent that you're concerned about that, you know, the way to address that is through the retention of your own expert, and have your own expert look at what the applicant's offering. 6 / (Queensbury Planning Board 5/14/09) MRS. STEFFAN-Mike, I think you're making a valid point, and it's a point that I was going to bring up, until you made it, is that we've had a couple of performance shortfalls on the Board. There've been a couple of projects that got through and we relied on the expert . testimony that the applicant's agent provided, and we didn't ask for an independent study to identify whether their traffic counts were valid or whether their noise statistics that they presented were valid from our point of view. We just believe what was presented, and the public group that was here didn't engage their own. expert and. often that doesn't happen because of the cost involved with it, but there have been other situations where the public has gone to the expense of providing their own expert testimony, and their presentation was remarkably different than the applicant's agent's presentation, and so we got into an area where we had to decide who was more believable, and that's when we made the mistake of not engaging our own expert to come up with that middle ground. MR. HILL-There again, that's where your expert can be helpful, too, is when doing the weighing of the competing reports, so to speak. MR. FORD-There's another factor I'd like to bring up and get your opinion on, please, because it puts our Chairman in a difficult position where we have 35,40, 50 people presenting, and they have secured an expert for presentation, and if that expert is also limited by the same time constraints as other participants from the public, then that puts them at a distinct disadvantage, I believe. MR. STEFFAN-That's true. That has happened. MR. TRAVER-Well, unless they submit something in writing. MR. HUNSINGER-Yes, I was going to say, there's no prohibition to the length of a document they submit in writing. MR. TRAVER-The other point I wanted to make, with regard to Don's comment, that as Planning Board members, we should come in and strictly interpret the Code, and if it fits the Code, it's approved. We have a lot of situations with, where if we did that, it would be to the disadvantage, certainly to the applicants if not to the Town, because there are things like setbacks and so on where we choose to, even though a project would automatically be denied were it not for this Board, we allow the project to go forward. MR. KREBS-Yes, bunhe Zoning Board of Appeals has that responsibility to make that decision to give in on any specification. If you're talking about setbacks, etc., the Zoning Board of Appeals, not the Planning Board, is the right venue for the applicant to go toto get a variance from the requirement. I don't see that we are a Zoning Board of Appeals. I think we are. MR. TRAVER-No, we're not, but we do have discretion. We do have discretion. MR. KREBS-I'm not saying we don't have discretion. MR. TRAVER-Well, and I'm saying that if you come in with the idea that if it fits the Code it's approved, if it doesn't, it's not, then there are applicants who would not benefit from the existence of a Planning .Board. MR. KREBS-Yes, but, Steve, the average public has to be able to buy a piece of property with some understanding of what they can do with that piece of property. MR. TRAVER-I don't disagree with that. MR. KREBS-And if they can'trely on the Town Code to determinewhat they can do with the piece of property that they purchase, then why would you want to purchase anything in the Town of Queensbury? MR. HILL-Well, that's true, but I think the issue, well, Craig's probably the one that can weigh in on this the best, is you're getting to a point where most all of the easily developable land in Town has been developed, and what's happening now is you're seeing the attempts to develop, you've seen it here, of course, yourself, and, Craig, you're on the front line every day with people, and I'm sure it's the more marginal pieces now, the ones that are not easily developed that, you know, now, those are the ones that the applicants are bringing through the door, and those present difficult challenges from the standpoint of the Site Plan Review criteria and the Subdivision criteria. So the discretion that you have to exercise, based on the Subdivision and Site Plan criteria, you 7 (Queensbury Planning Board 5/14/09) know, of course the applicants want the benefit of all the discretion they can get, and it's up to you to do some line drawing about how far that goes. MR. KREBS-Yes, but I'mnottalking about the person who, you know, has a nine acre plot which they bought and used one acre to build a house, and now they want to build another house, you know, at 300 feet elevation above the first house. That's not what I'm talking about, okay. I'm talking about, we have had before this Board, at other times, people who have proposed projects that were within the zoning of the land that they had, where we denied their request, and they were simply asking for a parking allowance that wasn't there, even though they were doing. mitigation that was greater than what they what they were asking for, but we didn't follow the zoning. We had an avid audience that came and complained, and the Board, now I. wasn't a full-time Board member then, so I sat in the audience and kept my mouth shut, but, you know, we were talking about something that was a legitimate request by the applicant. He met 99.9% of the requirements, but because we had such a negative audience, the Board denied the project. If he had taken us for an Article 78, he'd have won in a second. Okay. MRS. STEFFAN-Your opinion. MR. KREBS-My opinion. Absolutely, and his opinion, too, by the way. He just decided that it wasn't, he had lost his tenant and it wasn't worth fighting for at thi.s point in time because it's a very expensive thing to do an Article 78. Okay. MR. BROWN-That's always the applicant's position, that they have a winning case. MR. KREBS-No, no, no. It's my position, Craig. I sat here and listened to the thing from the. beginning, and the property was zoned properly, you know, if you looked at the decisions this Board has made relative to accepting alternatives, they made it 100 times no different than what he asked for, okay, but for some reason, this particular applicant wasn't give the same opportunity, even though he mitigated the situation well beyond what he had to. Okay. MRS. STEFFAN-But every project's different, and there are factors. There are many factors in every project. So there are no absolutes. MR. KREBS-No, there aren't, and I guess, then, but what you're almost saying, then, there are no regulations, either. Okay. MRS. STEFFAN-There's a lot of gray area. That's one of the reasons why the Planning Board exists. MR. HUNSINGER-Yes, absolutely. MRS. STEFFAN-Which, speaking of a gray area, Mike, can you please address the Comprehensive Land Use Plan? There is this debate that goes on regularly about the zoning being the law of the. Town, and the Comprehensive Land Use Plan being meaningless as far as decisions go. I've heard that. I don't believe that, but I have heard that comment. So can you please address the validity and the context in which the Comprehensive Land Use Plan is valid in making some of our decisions. MR. HILL-I think that, as a general rule, you want to be citing to the Zoning Code rather than to the Comprehensive Plan in the decisions that you make. The Comprehensive Plan is the foundation for the zoning. The zoning is presumed to be consistent with the Comprehensive Plan. That's the presumption with regard to the zoning, that it's consistent with the Comprehensive Plan. So I think in crafting your decisions, the place that you want to emphasize and put the weight on and your decisions on are the criteria that are in the Zoning Code itself, rather than harking back to the Comprehensive Plan. MR. HUNSINGER-It's interesting how you just described that, because one of the comments that has been made to the Board, typically it's when an applicant is disgruntled or, you know, unhappy with the decision, is the comment, well, you know, it's required by State law that your Zoning Code follow the Comprehensive Land Use Plan, and if you're using the Comprehensive Land Use Plan to deny or approve a project, that, you know, that's not correct, because the Code is inconsistent with the Comp Plan. So it's interesting the way you present it,. because I think that really addresses that comment, because your comment is, it's presumed that the Zoning follows the Comp Plan. So if that's the legal position, then it really wouldn't matter if you cite one or the other. It would be the same effect. 8 (Queensbury Planning Board 5/14/09) ~ MR. HILL-It should be, but your, the thing that you're most, I guess you would say, immediately concerned with, the thing that is really in your toolbox as a Planning Board to work with is the Zoning Code. That's the thing that you're grappling with is the Code itself. So that's why we would encourage you to look to the criteria in the Code, rather than to, I'm not saying that you should never make a reference to the Comp Plan by any means, but the Zoning is presumed to be consistent with the Comp Plan. If somebody, If a major developer in the Town of Queensbury has an issue with the Zoning Code, the time for that developer to take issue with it, if the developer. believes that it's not consistent with the Comp Plan, the time for that developer to take issue with that is when the Zoning Code is in the process of being developed, and if that developer is unable to persuade the planning committee or the Town Board of the need to make a revision in the proposed Comprehensive Plan, or, excuse me, in the proposed Zoning Code based on the Comp Plan, then the developer has the opportunity or anybody who's aggrieved, has the opportunity to file an Article 78 and challenge the adoption of the Zoning Code as being inconsistent with the Comp Plan. That's the time to do that. Once. the Zoning Code goes into effect, then. the, again, the presumption is that it's consistent with the Comp Plan. MR. KREBS-The reason, this has come up several times, is that the audience has made comments like the Comp Plan was, in fact, our Zoning Ordinance. When I sat on the PORC Committee with you and with Chris, and when I was asked to sit on it, I was told that I was helping to put forth, in addition to the information from the consultants, that we were putting forth recommendations to the Town Board to be incorporated in the Zoning Ordinance. That was my understanding. Now, if I'm wrong, I'd like to have somebody tell me that I'm wrong, because. MRS. STEFFAN-Well, but just as an example, the Comprehensive Land Use Plan was a three year work in progress, the update, and so, once it was adopted I. it's been over two years before the new 2:oning has been adopted, and so we've got a new Comp Plan, which cost a lot of money and a lot of time, and then we were using the old Zoning Code and not the newly recommended Zoning Code. So we had some incongruence between what was adopted and our old Zoning. MR. KREBS-But until the Town Board adopts those regulations, they have no credence at all, okay. So we can't allow a resident to get up and say, well, this agrees with the Comp Plan, because, that's fine, but that is not Town law, that's not Zoning Ordinance. MRS. STEFFAN-But I think an important distinction is the public has the ability to say whatever they want. MR. KREBS-Right. MRS. STEFFAN-And we weigh and consider what they have to say, based on our own deliberation and then we make our own decision. MR. .KREBS-Right, but we disturb a lot of people because they think that Comp Plan is, in fact, an Ordinance, and it is not. MRS. STEFFAN-I think most of the population has no idea the basis of Planning Board decisions or the basis of Zoning Board decisions. For most people, they jump on line, if they've got something in their neighborhood, to see what may. relate to the project at hand, and not seeing the big picture, and not understanding how they all work together. MR. HUNSINGER-Well, I mean, clearly most members of the public think that if they pack the room with 100 people that that's going to carry the day. MRS. STEFFAN-The day, right. Without understanding there's a lot more to it than that. MR. FORD-Could I !;let Counsel's opinion on that issue that I raised before, because I heard a couple of our Board members say, well, the expert can submit in writing a written report, but sometimes we're having a decision made that night, and the expert in opposition has not had an opportunity, we have not had an opportunity to review any written documentation from that expert, and yet they may be confined to three or five minutes for presentation. MR. HILL-Well, I think there are some different things that you can consider in that regard. First of all, I do understand the need to limit people in their comment time. Otherwise, if you do have a room packed with 100 people, even allowing everybody three minutes, it could obviously turn into a very, very long meeting, but where a group of 9 ~ (Queensbury Planning Board 5/14/09) neighbors has engaged an expert, I think it's reasonable for you as a Board to expect that that expert is going to speak on behalf of a group or a significant number of the group, and so in that regard, if he or she is going to take the place of a number of the group or the entire group, then I think in that circumstance, arguably you can allow the expert additional time if you want to. I mean, you may also be faced with an expert that, quite frankly, you don't wantto give a lot of time to. There are those kind of experts out there, and so you may want to accord them, you know, the same time that you would accord anybody else, but if you've got a,you know, a good legitimate expert who has prepared a good report, you know, a solid, well-crafted report, and you want to allow that expert time to. summarize the report and really provide you with a good amount of information, then it's within your discretion to allow additional time, and if people in the audience get upset that you allow the expert 1 0 minutes. and everybody else is getting three minutes,.for example, I think you can certainly say that the expert was engaged by a group .of people to provide a report and information, and, you know, we're according the expert time in proportion to his submittal here, and, you, Mr. John Q. Public, if you've got a comprehensive report similar to what the engineer has given us, then provide us with a copy and we'll accord you the same amount of time. Otherwise, if your comments are of a general nature, then please confine yourself to the three minutes that we're allowing for everybody else. I mean, .I think that's a legitimate approach, and to the extent that you can get the group to kind of buy into that, so that they're not all parading to the microphone after the expert gives his testimony, then, you know, I think that's a good thing, too. To get the public to essentially understand what this guy is representing to you, and, you know, he's using your time, essentially. MR. HUNSINGER-Are there any other sort of questions, comments that people want to make about denial motions, writing denial motions? MR. TRAVER-Well, I just had a comment, following upon what Counsel said. If we had an expert that submits extensive written documentation, you know, perhaps their own engineering, so on, that might be a situation where we might want to consider tabling and getting copies to all the members, so that We have time to examine that information without a time limit, perhaps. MR. HILL-I think very definitely, I mean, that would be certainly a legitimate thing to do. MR. TRAVER-Right. MR. HUNSINGER-Okay. Anything else on denial motions? So, I mean; basically the comments that you made, if I can summarize it in 30 seconds or less maybe, is kind of what you have been doing is what you would recommend, because typically when we do write a denial motion, we typically table it and then come back at a future meeting, with a, you know, hopefully well written sort of iron clad resolution. MR. HILL-I know that's the practice, and I think that we would recommend that you continue doing that, rather than give in to the temptation to do denial motions on the fly. Somebody in. our office said that, with regard to motions and the ultimate Article 78 challenges, that when you go into court, if you can use the analogy of kind of the attire that you go into court with, a well-crafted decision based on a good record would be similar to going into court in a three-piece suit with a suit of armor on top of that maybe, and the simple verbal denial motion that says we hereby deny this project, that's akin to going into court in your underwear, and you don't want to be in court in your underwear. So that's where we really appreciate you taking the time to work off of a written draft and to make sure that it's comprehensive, includes critical facts, clearly explains the basis for your decision, and it's justa much, much, helps the defense of your decision just greatly to have that, as opposed to a simple verbal denial. MR. FORD-Thanks for that visualization. MR. SEGULJIC-With regards to the Comprehensive Plan, one of the things on SEQRA that the form directs us to answer is the character of the neighborhood, and the only place that really gives any direction is the Comprehensive Plan. MR. HILL-Well, it does. Again, your zoning and the designation of the zones is presumed to be consistent with the Comprehensive. Plan, as far as what is envisioned for the nature of development or non-development, for that matter, on certain land in the Town. So if land is zoned in an area for commercial development, then that's assumed to be compatible type of development for that area. of land, and consistent with ~he Comprehensive Plan. If there's an inconsistency there between the Comprehensive Plan and the Zoning, what you have to rely on here is the zoning because that's what 10 ( (Queensbury Planning Board 5/14/09) has been enacted as the law of the Town, essentially. That forms the, again, the Comp Plan is the basis, and the zoning should be consistent with that. To the extent that somebody says, I think there's an inconsistency between your Comp Plan and the zoning, you've got to rely, first and foremost on the zoning. That's what your decisions have to rest on. MR. TRAVER-I think an area where the zoning might conflict, possibly, with the SEQRA issues that Tom may be thinking of, hypothetically, might be something like visual impact, where we have an area where it may be zoned residential, but someone goes in, and in order to put a house on a given parcel that is zoned residential, they've got to blast half the mountain away, and it's going to be visible from miles, you know, maybe from a wildlife refuge or something, and the zoning says it's fine to do that, I mean, assuming that they handle all the engineering issues of stormwater and so on, but aesthetically, it might have an impact on half the Town, for example, and the use plan clearly in some areas, are talking about preserving views and that type of thing, as an asset to the Town. So how do you reconcile that example, which we have run into are likely to continue to run into more, as you rightly point out, the restriction on available land is now encroaching on some of these mountaintops and so on. MR. KREBS-Right. Part of the problem with that is I went through many of the meetings for the Comprehensive Plan with the consultants, and the consultants just said to you, what would you like. Well, wait a minute, I own this piece of property, and You'd like .it to be a park. Well, I'm sorry, I have property rights, and what the consultants did not do is they never, ever brought to the public the right, the fact that people have existing. zoning, and that people have property rights. So what we ended up in a Comprehensive Plan was the result of the consultants suggestions to the PORC Committee, and we ended up with people believing, because they went to these meetings, and the consultants at Saratoga Associates said, yes, what do you want, and everybody put their hand up and said we want open space, okay. Everything on Ridge Road should now become open space, because I have my little house here, on Hiland Park, and I don't want anymore development in this Town. Well, that's not legally possible. Unless the Town wants to compensate these people for their property rights that you're taking away. Am I wrong? MR. HILL-Well, I mean, fundamentally, what you're saying, there's certainly a great deal of truth to that. I mean, you know, we can't have a confiscatory situation where we're depriving people of all their property rights, but by the same token, the concern about visual impacts and where those factor in, that's obviously an element that you're analyzing in your SEORA review, and one of the main concerns about SEQRA these days is visual impact, and I'm glad that we're talking about this because it kind of segways into one topic under this writing denial decisions that I wanted to talk about which is the potential for inconsistency between SEQRA review and your ultimate denial decision. As you know, before you render a decision, you need to do SEQRA review, and you can run into a potential inconsistency if you do the typical short form and you neg dec the project, as often happens under SEQRA Short Form review, and then you go ahead, after having issued a negative declaration, saying that there aren't any significant, there won't be any potentially significant adverse environmental impacts, and then you go on to say we're going to deny the project, because of, and you cite reasons that are. essentially environmentally based reasons. Then you've got inconsistency between SEORA decision and your denial. MR. KREBS-But when we look at that, how do we decipher the difference between the reality that exists, you know, we're going to get into some major problems when we get into Main Street, because there's a formula for Main Street, but the people who own the property did not necessarily agree to Main Street, or, I'll give you another example, is we have a view shed coming down Route 87. Some of it is absolutely terrible, but it's already there. It exists. Now do the new people have to do something that the old people didn't have to do? If they bought the property before the people that did the terrible job thatthe Town Board and the Planning Board approved, okay. MRS. STEFFAN-Because you make decisions on the Comp Plan and on the subsequent. MR. KREBS-Not on the Comp Plan. o MRS. STEFFAN-They usually go hand in hand together. The Town spent $140,000 on the process. MR. KREBS-Yes, but the existing Zoning Ordinance or the previous. 11 (Queens bury Planning Board 5/14/09) MR. OBORNE-We still have two,. actually. MR. BROWN-No, the new one's in effect. MR. KREBS-The new one's in effect. Okay. So that new plan came from a Comp Plan, I agree. Whatever the new Zoning Ordinances are that came from that Comp Plan, that's what we will have to administer, but we can't, when we have an old Zoning Ordinance, we can't use the new Comp Plan to change what the old Zoning Ordinance says. MR. HUNSINGER-I see what you're saying. MR. SEGULJIC-So, following along with Mr. Krebs' logic, any money we spend on doing Open Space plans, any of those types of plans, we're wasting our money. We never should have done it in the first place? MR. KREBS-No, I didn't say you're wasting your money. I said until the Town Board, which is the governing body of this community, agrees with you and puts it into a Zoning Ordinance, it has no weight. MR. BROWN-Which it does now. MR. KREBS-Right. MR. HUNSINGER-I didn't realize the Town Board adopted the new Zoning Ordinance? MR. BROWN-Yes. MRS. STEFFAN-Because itwasaccepted by the State. MR. HUNSINGER-Okay. MR. TRAVER-If we could, could we go back to my hypothetical? MR. FORD-Yes, please. I'd like to get the reaction to Steve's questions. MR. HILL-Which is, you had the hypothetical about the residential property where there's going to be a lot of blasting. MR. TRAVER-Zoned residential, okay, zoned residential, and someone figures out a way to meet all the engineering, stormwater, all that stuff, requirements. What they have in mind is clearly going to have a dramatically negative impact, visual. impact, not stormwater, you know, not, you know, safety, blah, blah, blah, but an impact on the asset of the Town, which is real, which is part of the reason that we generate tourist dollars and so on, the visibility of the mountainside or whatever, wherever, and I'm not necessarily designating a place that this would be, but how do you reconcile, on the. one hand, saying, well, we don't need to be involved because they're entitled, by the zoning, to put their house up, as long as they meet the basic Building Code, versus, you know, wanting to keep the value of the, keeping the assets of the Town intact by saying, you know, we don't want this monstrosity up on top of the mountain that's going to be visible from everywhere because. MR. KREBS-Generally, from a court, you then have to take the property by eminent domain and you have to compensate the person for the value. MR. TRAVER-Well, that's my question. That's what we would have to do? MR. FORD-Could we hear Counsel's opinion? MR. HILL-Where you would deal with that, I think, is under your SEQRA review, under your SEQRA analysis, and it's going to depend upon the severity of the visual impact, and that's what you're going to be considering as you do your SEQRA review. If the visual impact is great enough, and is going to be severe. enough, and if the applicant is in, during the course of the application process, you're obviously in a give and take with the applicant. You're going to be saying something to the effect of this is going to have an enormous visual impact, you know, this is very difficult, you know, is there any way that you can reduce the visual impact? Can you move the house forward on the lot so as not to have to take down half the mountains behind? And .if the applicant is not of a mind to compromise, you may find that the visual impact, the resulting visual impact, is sufficiently of a sufficient magnitude that you have to pos dec the project, and if you pos 12 (Queensbury Planning Board 5/14/09) dec the project, then you're going to require an Environmental, the applicant to prepare an Environmental Impact Statement. MR. TRAVER-Well, I ask that because I think Don's point is a good one, that people that go out and buy property before, now there's all this new zoning and so on. I mean, what if I went out and I bought a huge piece of property in this serene wilderness, and are my rights going to be impacted by a change in zoning that now allows my property value to go down? Does the Town need to, in order to allow this house to be built, do they need to take my property by eminent domain? Do they need to compensate me for the fact that I once had this beautiful view, and now, because the Town decided to change the zoning, myself and all my neighbors are being negatively impacted by this Board or some Board allowing this house to be built on top of a mountain. MR. HILL-No, the Town is not going to have to purchase your property because you would have a different view from your property if this proposed house was built. There's not an entitlement, under the law to any continued view from your property, but you, as a Board, are going to betaking into account the potential visual impact of a project, from the standpoint of the community. What is this project, proposed project, going to do from a visual perspective? That's where your SEQRA analysis comes in. That's where you can, if there's a sufficiently large impact, if the applicant doesn't understand fromyou the reservations that you express about the potential visual impact, and your request to the applicant, in view of a potentially large impact, suggestion to the applicant, well., could we move the house forward on the lot so that you don't have to blast the mountain off in the back to site the house, and if the applicant says, no, I don't want to do that, then the resulting potential visual impact, if you all agree it may be sufficiently large, it may be of such significance, that it warrants the preparation of an Environmental Impact Statement, and that may ultimately lead to, depending on how that Environmental Impact Statement comes out, how that process, and there is a process that you go through with that, at the end of that process, if the visual impacts aren't sufficiently mitigated, then it may lead you to conclude. that you need to deny the project. Now, anticipating your question, Don, does that mean that that person has been deprived of the use of their property to the point where they should be compensated, that the Board has effected a taking and we're going to be subject to a lawsuit challenging the denial and the applicant essentially saying you need to buy my property now because I wasn't allowed to build my house, I think the answer to that is no. Probably no. It depends on the particular facts, but the answer to that is probably no, I mean, if the applicant can still build a house elsewhere on the lot, or if the applicant can still engage in. some other permissible use of the property with that lot, then I think a court's going to say, no, you haven't been deprived of the value of all that property. I mean, the United States Supreme Court, and I think pretty famously, in regardS to, I can't remember, cite the case right now, but with regard to one of the cases that came out of North Carolina or South Carolina, a property owner claimed that they were effectively being deprived of the use of their property, and the Supreme Court said, probably not this extreme, but the Supreme Court basically said, well, no, we think you could still use that lot for picnicking and camping, and so you haven't lost the use of the lot. I mean. MR. HUNSINGER-The Supreme Court said that? MR. KREBS-But picnicking and camping doesn't have the same value as a single family house. MR. HILL-Correct. Exactly. Right, and that's, it probably wasn't quite that extreme, but the Supreme Court essentially said, no, you still had some use of the property, even though, from an economic perspective, the value of that lot, given what the Supreme Court said the remaining, you know, use might be, the value of the lot might have dropped by 50% or something, but the Supreme Court, nonetheless, said that there hadn't been a taking. There's probably going to be more cases that talk about the degree of taking and whether there's some, you know, what the degree of compensation then is, but in that particular instance, that property owner, depending your perspective, you know, unfortunately lost that fight, the Supreme Court saying, no, you haven't been deprived of all of your use. Therefore, you're not entitled to have the State buy your property. MR.TRAVER-I was just going to say, with more development coming, which we know, and therefore more impact not only on the owner or owners of the land to be developed, but the owners of land around, all of whom are going to be impacted one way or another by this ongoing development, is it ever appropriate for us to consider the context of development in the sense that perhaps on one side of the equation you have one owner of one piece of land that wants to do X, and if that goes forward, you're going to have 13 (Queensbury Planning Board 5/14/09) maybe a dozen or other equally, . you. know, landowners who are going. to be negatively impacted, and try to come upwith a solution where we say we're going to judge in favor of the majority of people who would be, or mitigating against damaging the majority of the landowners and deny the one landowner, as opposed to allowing one landowner and then having a whole lot of people who are negatively impacted. MR. HILL-I think you've got a very difficult hypothetical there. I think that you have to, the way that you're going to be dealing with that, I think, is through the SEQRA process. The types of effects Hke traffic, noise, visual and so on, those are the things that you're analyzing under SEQRA, but the, if you've got a piece of property that's zoned for single family residential development, and it's a vacant lot, and it's zoned that way, and it's, you know, everything about the lot allows for conforming development in that lot, the fact that ifthat lot gets developed, it means that there are going to be, you know, there's going to be more traffic in the neighborhood. There's going to be another house sitting there on a lot that maybe previouslywastreed and a lot of people viewed it as a lot of people used to like to walk through it and they viewed it as kind of a local park, even though it was a privately owned piece of property. MR. TRAVER-Yes, that's a much more typical. That really wasn't what I was thinking of, but I understand what you're saying. MR. HILL-But in that scenario, the person that owns the property, whether they've owned it for 50 years or whether they bought it yesterday from. the people before them that owned it for 50 years, I mean, the person has a right to develop that property in conformity with the zoning, and the fact that some people may have viewed that particular plot as kind of a little local, you know, park in the area and enjoyed hiking through it. MR. TRAVER-We've had that happen. MRS. STEFFAN-Illegally, yes. MR. HUNSINGER-Lots of times. MR. HILL-Well, yes, and we've seen it with other Boards. It may be an unfortunate circumstance for those other neighbors, you know, but had they wanted the local park, you know, I think the answer of that property owner, or the people that sold it would be, you had the opportunity to buy it. You could have bought it and preserved it. MR. TRAVER-Yes. Well, that's just the groWing pains of the Town, that's all. Okay. MR. HUNSINGER-The other SEQRA related issue that we had on the agenda is the whole discussion on segmentation. I think a lot of this discussion kind of naturally leads into that. I wasn't at the meeting last week, although we don't want to talk about that project specifically, but the issue came up, and so that's, you know, it was fresh in people's minds, so that's why the topic made it on the agenda, just to get some clarity on what. should we be looking for in terms of when segmentation would be triggered or become an issue. MR. HILL-Segmentation and cumulatively impacts are kind of a, you know, you're getting into an area that is, from a SEQRA standpoint, I think it's safe to say is kind of a more complex area. If you've got an applicant that comes to you and they say, you know, we've got two lots, Lot A and Lot B, they're side by side. On Lot A we want to do this, and they give you plans for that. On Lot B we want to dothis, and they give you plans for that, and they submit a SEQRA Short Form for each one, and they say, you know, okay, doyour SEQRA on this one and then do yourSEQRA on this one. I think your answer to that is likely to be, wait a minute, you've got two lots that are contiguous. They're side by side. You're going to develop them at the same time, you know, perhaps there's a shared driveway or something, maybe there isn't. There may be some other interdependency between the lots. I think your likely reaction to that is going to be, wait a minute, this may be a situation that if we treat these separately is going to constitute segmentation. We probably ought to be looking at this under SEQRA as one thing, and you're probably going to be right in that circumstance. Where it becomes a more difficult call is where you've got a developer who has a bunch of property, they want to develop part of it, they don't have any specific plans that they've brought in for the remainder. They may have. a vague idea, or they may not. They maysay we don't know what we're going to do at this point, which may be a completely honest answer under the circumstances. They may be playing a little coy because they may in fact have an idea of what they want to do, but they don't want to disclose that, because they don't want to 14 (Queensbury Planning Board 5/14/09) risk losing the opportunity to go out there and find that ideal. tenant that they want to develop the rest of the property for, but nonetheless, they haven't submitted any plans. In that circumstance, the development isn't going to be going on simultaneously on what they're proposing to do and on the remainder of the property, and so we're not going to have a situation where, temporally, things are going to be going on at the same time. If they haven't disclosed what it is they're going to do, if they don't have an idea, there's not, I guess there's less likely to be any functional interdependence between what they're doing on Lot A and the vacant remainder of parcel. So in that circumstance it becomes more difficult to figure out whether you've got a segmentation situation, and there are a number of criteria that are provided for under the SEQRA regs that deal with segmentation, and that you can use to analyze and determine whether or not you've got a segmentation situation.. I guess I would suggest to you that if you find yourself in that kind of a situation, and this, my next comment is going to sound somewhat self-serving, and I'll ask you to please forgive me for that, but if you find yourself in that situation where. it's looking pretty gray, and you're faced with pulling out your SEQRA regs and starting to do an analysis based on those, I guess it's nine factors or so that you would want to take into consideration for a determination about whether you've got segmentation or not,. I think at that point I would suggest that you have a discussion about whether you might want to refer this particular question out to your Counsel, and let Counsel take a look at it, not necessarily because Counsel is so darn smart, because Counsel is going to have to look at those factors and probably look at some of the case law that deals with those factors, but I don't think you want to put yourselves in a situation where you're sitting here under the bright light, so to speak, and under the pressure of time, trying to quickly go through the SEQRA regs to analyze, okay, let's see, have we got a common purpose? What about the location? What about the ownership? What about the, is there inducement here, what about cumulative impacts? And those are a few of the different things that you're going to be considering. I don't think you want to put yourselves in that kind ofa situation and under that kind of pressure, where you're trying to do that kind of an analysis in the course of a meeting. I think, at the very . least, you want to table the matter, so that, if you want to analyze it yourself, you can do so in the calm quiet, you know, at home while you're having a cup of coffee and can take your time doing it, and you may decide, you know, we don't get paid enough for this. This is the reason why the Town has Counsel. Let's ship this application over to them and get some feedback, some input from them as to what they think about whether or not the thresholds have been breached here, and whether this would constitute impermissible segmentation if we don't analyze the potential SEQRA effects for, you know, the rest of this acreage in addition to the specific application that's in front of us. MR. KREBS-And, by the way, talking to Dan Stec, Dan Stec said I would much rather have the Boards have somebody there then have to go fight an Article 78 later. He said it's a lot less expensive for us to pay Counsel. We can afford Counsel, and also, if we need an engineer here, he said you can have an engineer. I'd much rather have you spend the money up front than in the back. MR. HILL-Well, but let me hasten to add, the fact that you either have Counsel here or refer a question like that to Counsel, is, of course, no guarantee that a disgruntled applicant isn't still going to file an Article 78. MR. KREBS-No. MR. HILL-But it hopefully puts you in a better position with a more defensible. MR. KREBS-Right, but we may have the right criteria to win the case. MR. HILL-Maybe a more defensible, hopefully a more defensible decision. MR. KREBS-Right, and sometimes it's just a matter of, you could say to us, we need to research this further, to make a proper decision, and at that point, we table it, we do the research, and then we come back with an understanding of the real problem and what we have as legal rights to handle it. MR. HUNSINGER-I had that same conversation with the Supervisor, and it is actually an item on the agenda here, having Counsel present at meetings, you know, and that's a real change from a couple of years ago, and to me it was a breath of fresh air, because I was one that, when Counsel stopped attending all the meetings, I said, you know, we're at a real disadvantage, because most of the applicants have Counsel there in front of us, and so if we don't have Counsel, we have a disadvantage, and so my inclination has always been that if there's ever a doubt, that we'd prefer to have you here, as opposed to 15 (Queensbury Planning Board 5/14/09) not here. Having said that though, I think, you know, a lot of the work that we do, no offense, doesn't necessitate Counsel being at the meeting. MR. HILL-Absolutely agreed. MR. HUNSINGER-So, I think, you know, having the item on the agenda for discussion is to try to maybe come up with some criteria for what should be the trigger, what should we look for. Personally, I was surprised at some of the issues that came out at the meeting last Week that I wasn't here at. Quite frankly, I didn't expect those kinds of issues to come up, which is why, you know, Counsel wasn't on call, or, you know, there was no discussion about having you here for that particular item. So I think, you know, there still may be times when Counsel is not here and we kind of say, well, we're at a disadvantage here. Let's table this and come back when we're well represented, but are there particular things, Mike, maybe that you would suggest or recommend, issues that we should look for or, you know, types of projects or whatever where, you know, you think having you here would be appropriate? MR. HILL-Well, I think that probably if you get the sense that you're facing difficult or complex SEQRA related questions, that might be a circumstance where you would want us here or Where you would want to have Keith send the application over to us with a request for a review of it. Where you've got a particularly large project, that's probably going to be a potential trigger, but beyond that, Chris, as you pointed out, I mean, you've got a very experienced Board here. You're very savvy, and you've got good professional staff supporting you. You've got, you know, you're in an enviable position as compared with many of the Boards we work with, and, you know, we realize that probably for better than 75 or 80 or 85% of the projects that come before you, you don't need Counsel. I mean, you know how to conduct a SEQRA review, and you can get through those things. We're certainly happy to be here whenever you feel like you want us here. We're certainly happy to do that. MR. KREBS-But certainly with the experience that Craig has, with the experience that Keith has and the experience that you have,you three should certainly be able to make a decision. I mean, certainly there are going to be times when something is going to come upthat we didn't anticipate, but I know these two. can anticipate a lot of what's going to happen. MR. BROWN-Well, yes, those are the kind of tea leaves that we read when (lost words), or if there's a continued one, obviously (lost words). MR. HILL-And you'll get a feel, Craig will get a feel pretty quickly on the front end, and then. MR. BROWN-Yes. If you factor in neighborhood issues, what's happened here before of a similar nature, not this property, but certain neighborhoods are, you know, for good or bad, renown for public participation. MR. KREBS-Or we've experienced problems with this guy before. MR. BROWN-Well, yes, I mean, we've experienced problems with this developer before. MR. SCHONEWOLF-You can say, well, I had a meeting (lost words), but we don't know about it (lost words) and I had this or I had that agreement with the Town Board, and Craig's gotto tell us that (lost words). MR. BROWN-Yes, and we'll get the feel forthat fairly early on. You guys have seen, too, when there's a controversial project, the. public. comment. information is overflowing. When that stuff starts coming in two days . after the application is submitted, we're going to get a pretty good feel that we might want to have somebody here to help you. MR. OBORNE-And as an aside, we do sit down on the first Tuesday of the month, as Staff, with Counsel, and we do go through every application, and, you know, not with a fine tooth comb, but we do discuss what the agenda has before us, if Mike is needed or not. MRS. STEFFAN-I also think that it's just important to talk a little bit about protocol, and even with the denial motions, any time a Planning Board member is going to confer with Counsel, they need to make .sure that the Planning Staff know about it. I mean, Counsel is an independent contractor for the Town, and so they're going to be billing based on 16 (Queensbury Planning Board 5/14/09) . work that's done. So if anybody's contacting Counsel that Staff need to know about it, just so that we're all on the same page. MR. BROWN-Yes, that's an excellent point, and not to the degree, obviously, where we need to know any details, but here's the time and date, so when the bills come in, we can have a record of, not that nobody's trustworthy here, but it's good record. (lost words). MR. HILL-And probably also another aspect of that is that if there's any kind of correspondence that we generate as a result, then you'd probably want that in the file, so that everybody has the benefit of whatever assistance we were able to provide. MRS. STEFFAN-I have, Mike, can you define ex parte communication for us, and, you know, what exactly that means to Planning Board members? MR. HILL-I think ex parte communication in our context here in the Planning Board would be, I think, communication that occurs outside of the context of a public meeting. I think that's probably the easiest way to define it, and it can occur between or among Board members, or it can occur between and among Board members and members of the public or applicants, but the basic idea is that you're a Board that conducts its business and makes its decisions in public. That's the way that Planning Boards are designed under the law, intended under the law to operate. So. that it shouldn't be a situation where, you .know, three or four of you decide to get together at somebody's house over the weekend and go through the applications that are on the agenda and talk about them, deliberate about them and discuss and decide how you're going to vote on them and then come in and vote that way. That shouldn't be happening. You shouldn't be conferring with each other about the substance, the merits or lack of merits of a project outside of a Board meeting. If you've got an opinion about a project, or some aspect of a. project, you think good, bad, whatever, that is something to share, not just with one member of the Board, but that's something that you should share with everybody and say, look, I think the applicant's application falls short here because of this, or I think that this doesn't have to be a concern about this project because of this or that. Get that information out there, your opinion out there, and the reason for it to your fellow Board members so it can be the subject of deliberation and can help inform whatever decision you ultimately make. Likewise, if, to shift the focus a little bit, you know, if you're shopping at Lowe's at the applicant happens to be shopping there, oran opponent of the project happens to be shopping there and they come up to you and they want to bend your ear about why you should vote in favor of my project, or why the opponent thinks that the project is absolutely the worst thing that could ever happen in the Town of Queensbury, in that circumstance, as difficult as itmight be, you really ought to say to that person, I understand that you want to talk with me about this, but the place for you to talk about your concerns about the project is not just with me, it's at a meeting where I, along with my fellow Board members, can have the benefit of your advice and your concerns. You really ought to, as a member of the public, you really ought to come to the meeting. If it's the applicant, the place to make your case is at the meeting, you knoW, and if the applicant has a representative, you know, I understand what you're saying, you know, talk with your attorney about it, have him bring it up the next time you're at the meeting, but this really isn't the appropriate place for us to talk about this, or for me to talk with you about this, and obviously you have to try to be diplomatic, but that's really the. way to handle it. You shouldn't have those kinds of conversations outside the context of a public meeting, and I think those are really the circumstances. I mean, Gretchen, do you have other, are there other types of ex parte? MRS. STEFFAN-No, I just thought for clarity, you know, we've got a new person and I wanted a legal explanation of what ex parte communication was. I know that in the past I've been contacted by people, I've been on the Board for five. years, and I'll say you need to talk to either the Chairman. I've been contacted by outside folks, and so I refer them back into the chain. The other thing, and this isn't ex parte communication, but I've also been called by the Post Star and other folks and I will tell them, I am not the spokesman for the Planning Board. I need to refer you to the Chairman, Chris Hunsinger. So, you know, there's a couple of issues that I felt were important. Usually when we do our drive arounds, we will not engage the applicant. There've been a couple of times where folks want to show us around or tell us about the project and we're like, you know, we're here on site visits. We really can't talk to you about the project. We do have the plans and we will see you at the meeting. MR. HUNSINGER-I'm glad you brought that up, because I was going to make the point, too. Counsel has always advised us in the past, and we haven't been reminded in a while, you know, Saturday is the scheduled site visits, and we try to go out together if we can. We leave here at 9 o'clock Saturday morning, and Counsel has always, in the past, 17 (Queensbury Planning Board 5/14/09) would always remind us, you know, be careful that you don't, you know, deliberate the project while you're in the car, or while you're at the site, you know, you can talk about the project, you can talk about the site issues, but you can't really deliberate, or you know, cOme to any conclusion. MR. BROWN-Mike, what about the applicant who just insists on hisfront porch speaking to you while you're looking at the boathouse, and you just can't get him to stop talking, and the. neighbor, who you're pretty. sure doesn't like it, is standing at the fence line listening, is it safer to come to the meeting and say, while we were on our site visits, we had a conversation with the applicant and this is what was said. Then it's, there's no, the neighbor's not going to say, well, you spoke with him during your site visit, and you got the inside line. Is it probably safer to do that at the meeting? MR. HILL-I think it's probably safer to disclose it, but while you're there, and on the site visit. If the applicant just wants to. push himself or herself on you to talk about their project, I think you have to try to make the point that you're just there for the site visit, just there to gather facts and information, that you'll be happy to hear from the applicant in the context of the meeting, but that you don't want to engage in conversation with the applicant about the merits of the project while you're there on the site visit. It could be, when you're going on a site visit, that you have a factual question about what is going to happen. You may get out to.the site, and you may wonder, are they proposing to put the structure there, or is the structure going to be over there? It may not be immediately obvious or whatever. That's a proper question to ask an applicant. Can you please tell us, is the structure going to be inthis corner or is it going to be in that corner? It's not clear from your plan, but, for the applicant to then to start to launch into a big explanation about why this is going to be such a great benefit and why you should allow it and so on and so forth, you have to try to cut that kind of conversation off to the extent possible. If the applicant won't stop, which is I think the hypothetical that you're saying, Craig, then I think you have to note that, you know, on the record, that you did the site visit for purposes of fact gathering, and to observe the site, that, you know, Mr. Smith was there and Mr. Smith wanted to talK about the project and he proceeded to go on at some length about the project, but the Board members didn't engage him in conversation about it, or something. I think that's the point you want to make. You don't want to be talking about the project with the applicant. MR. HUNSINGER-What's always been interesting to me is actually how infrequently those kinds of issues do come up. Usually all you have to say is, look, we're only here to look at the site, we're not here to really talk about it. People generally respect that and back off. In fact, most times you don't even have to say anything. MR. HILL-Yes. I think that they realize, I think on some level they understand that, you know, you're trying to be objective and that they can't intrude on that too much. MR. HUNSINGER-Yes. Was there any other questions or comments on the topic of segmentation before we get off that? MR. TRAVER-I would just mention that the handout that we got was quite informative. MRS. STEFFAN-Yes, thank you for providing that. MR. HUNSINGER-I don't think I got it. Which handout? MRS. STEFFAN-This. MR. HUNSINGER-I didn't get it. MRS. STEFFAN-Keith's got one. MR. HILL-I don't know whether you want me to stay for the remainder of your discussion? I can if you want me to. . If you don't feel like you need me at this point. It's whatever your preference is is fine with me. MR. HUNSINGER-Yes. Well, I think, you know, the other item that might be useful to have you here is the approval conditions and enforcement enforceability. That might be useful to have you here for that discussion. We can do that now. I think, I don't know if that was an item that Staff brought up, or if that was something that, was that your question, Gretchen? 18 (Queensbury Planning Board 5/14/09) MR. KREBS-It actually came out about it in a situation at our last meeting where there was an applicant who had some enforceability problems that went back to 2005. MR. HUNSINGER-Okay. Without talking about specific projects or anything. MRS. STEFFAN-Yes. What happens, you know, we've been specific in the past with, you know, approving things with conditions. We've also learned, over the last couple of years, that, you know, there have been things that we put in our motions that are pretty much feel good items, that they can't be reinforced,like, for example, . fertilizer. It's something that we believe in, but at the same time, you can't enforce. it,and so, are there things that we can do to make sure that our motions and conditions have enforcement abilities, and if somebody has not complied, what discretion do we have on the Planning Board to help with enforceability? MR. HILL-Well, I guess the first thing that I'll say is you mentioned, Gretchen, about feel good type items. Those, I would think, if you're sitting in Craig's chair, or standing in his shoes, those kinds of things, while they're important, and you don't want to overlook them or give an applicant a pass on them, so to speak, from an enforcement standpoint, they're very, very challenging, because if you're saying don't use fertilizer, then, you know, you could clone Craig 100 times over and still not have enough eyes and ears to be out in the Town and looking at everything to make sure that, you know, I don't use fertilizer on the project that you just approved for me. So, if, I guess from the standpoint of enforceability, it's always better or easier to enforce the conditions that have obvious consequences, something that you can immediately see, if you're looking at it from an enforcement perspective, and that's going to be something that Craig can gather evidence about, and document, so that in an enforcement action, it's clear that the offensive conduct or the omission, if it's an omission to do something, that the omission has occurred, or the offensive conduct has occurred and can be substantiated when it comes time to take it to court, .and from the standpoint of enforcement, I was talking with Cathiearlier today, in anticipation of our discussion tonight. The Code, our Code, her recollection was that our Code specifically allows for enforcement actions in situations where conditions are not complied with, as opposed to some towns where enforcement's more difficult because they don't specifically set out in the language of the Code itself, that failure to comply with the conditions can be subject to enforcement. In that case, you have to make a kind of inferential leap when you're doing the prosecution of the violation, but here, we've got language like that to authorize that, and so enforcement of conditions is more straightforward. You, obviously, in making your decisions, you want to spell out the.conditionas clearly as possible, make sure the applicant understands it's a condition. Where appropriate, get that condition stated clearly and prominently on the plan that you approve, so it's there in black and white. That's particularly helpful so that you can't have the contractor, excuse me, you can't have the property owner say, well, the contractor, you know, didn't see that on the plan, and so therefore it didn't get done, or he did something that shouldn't have been done. You want to tell the applicant while they're here to make. the note prominent enough on the plan so that the contractor's not going to overlook it and by the way, Mr. Property Owner, we're making you responsible for ensuring that your contractor is informed that the note's on the plan. Get that stuff into the record so that there isn't any doubt about it, so that the note's big enough and the applicant knows that they're on line, on the line for making sure that thecohtractor is informed, and then once that's there, he obviously, Craig needs to know what the condition is. If it's something that's time limited, that either has to occur within a certain period of time or isn't allowed to occur within a certain period of time, then you need to know about it so that you can be aware of what the time constraints are. MRS. STEFFAN-I think we're better, several years ago, you know, some of the things that we talked about as a Board were, well, we would recommend deed restrictions and stuff like that, but we've since learned that they're not enforceable, but plat notations are, and so we are much better about including things on the plat than we used to be, but some of the things that have come up recently are sign related, you know, folks trying to go around the Code that exists, or an approval that we have, and asking for things after the fact, without coming back for a modification. So, you know, we know that we have some work to do in that area, that we have to be better with some of the conditions because now based on our experience and some of the weasel deals that some applicants have pulled, we just have to be more vigilante in some of our conditions. We're learning that the hard way. MR. BROWN-Yes, that's a big thing to consider with any kind of resolution that you make, whether it's an approval, a denial, or a tabling motion, that the more specifics you can put in that resolution, the better it is for you to remember what you were thinking about last time, for the applicant to know what to bring back to, and for us to understand 19 (Queensbury Planning Board 5/14/09) what it is that they need to submit in order to be put back on, if they've been tabled, and what it is they need to performed in. the field if they've been approved, and what the conditions are, and if it's a denial, why you denied it. Why was this position taken and point back to the facts in the record that support that denial. So, specifics, you know, in all three instances are very important. When it comes to actually creating the position (lost words) what can we dotomake them better. Well, a suggestion is maybe taking a half a second to think, you know, how is this going to be enforced? Is this an enforceable, not only is this a rea.sonable condition, but is this an enforceable condition and if it is, you know, that's actually the first step, and then the more, I guess, quantifiable it is, the easier (lost words). Definitely a lot better thanwe want to see some trees on the site, orthe property. . We want to have this performed within six months of conception of the process before you get your CO if you want to have this done, because that could take forever. So I guess more specifics (lost words). How can we make the enforcement better? Well, we've had this conversation before, and a lot of that is the philosophy that we have, and that I have from an enforcement end, Bruce and I, we look for applicants to get the project done. We give them second, third and forth chances to get that project done before we throw the book at them (lost words) in court, and why is that? What will happen is, when you do that, the applicant will get before a judge and say, I can't complete the landscaping on my project, and I don'twantto do it. They're making me do it, and the judge will ask, well, have you gone back to the Planning Board, have you exhausted your administrative remedies, have you. gone back to see if you can come to some compromise with the Planning Board? Code Enforcement wants you to put in 400 trees. You want to put in no trees. There's got to be some middle ground some place. The applicant says we just haven't been back to the Planning Board yet to try and work out a compromise. So we try and push them as far as we can, or as much as we can, to get approved exactly what you guys have approved, or we tell them that they have to come back. Does that process drag on sometimes to the point where they've still got two or three or five orten items left over, and decide they want to come back for a modification to their plan to either have a bigger parking lot (lost words) lighting (lost words). That does happen sometimes but you're talking about a project (lost words). It always boils down to the bottom line in these projects, You've got $300,000 in this project and $50,000 left in landscaping to do, we need to be operating to make money before we can go to the next step, and a lot of times (lost words) asked and answered solely on the process, and conditions be made that all these things have to be done before. you get your CO, landscaping's got to be in. The parking lot's got to be striped. Light bulbs have to be in the fixtures, and all those types of things. The more specific the review, the easier it is for us to enforce it. (Lost words). Human nature, they're going to try to get away with what they can until you hold their feet to the fire. MRS. STEFFAN-Well, we've recently had a couple of fOlks come back and they've asked for. some, what 1'.11 call special consideration, from. the Board, and they wanted them an expedited approval, and we sent them away until they satisfied the conditions of the prior motions or to complete their Site Plan,. because if we give them a conditional approval, then it becomes your problem to try to get them to comply. So I think, you know, we're better than we have been in the past, but. MR. KREBS-And we also have Keith here that says very carefully, I'm not suggesting this to the Board, but you might want to consider, which helps us a lot. MR. BROWN-Well, and that's nice to hear. I mean, we often talk about this in the office is, for good or bad, we spend 40 hours a week behind a desk looking at these applications, and probably for good, you guys don't, because you probably wouldn't want to come to a meeting twice a month and talk about it some. more. So you come for three or four hours every other Tuesday night, and we've spent. hours. and hours reviewing these applications. So we're going to give you some Staff Notes and we're going to give you some suggestions about the projects, not because that's what we like, it's not because that's what we don't like. It's because the Code says here's what this type of project should have, and (lost words) or it doesn't, or it's got to much or too little, so it's nice to hear that you would like the information to begin with. MR. KREBS-Absolutely. MRS. STEFFAN-Yes, but I was even saying, Craig, during the meeting when something comes up, and sometimes we don't catch it, Keith does, and then he just very nicely lets us know, without, making sure that the community understands that he's not telling the Planning Board what to do, but we might consider such and such, and I think that's very valuable for us. 20 (Queensbury Planning Board 5/14/09) MR. BROWN-And I'd have to agree that it is, and what you may want to consider, and this is a process thing for the Board to consider at each meeting, even before you do your resolution, and the Zoning Board used to do it more (lost words), but w~en a resolution is made, or before a resolution is made, I guess (lost words), the Chairman would ask all the Board members do you understand the resolution, are there any questions on the resolution, and the question would also be directed to Staff. So the secretary's been taking notes. They've got everything in the resolution that they think needs to go in (lost words), but something has been picked up by Staff that, you know what, you guys talked about this. Maybe you don't care about, but the public said something and you wanted to ask about it. Do you still consider that? It's just another set of ears and eyes that may help close that loop where,you know, we don't have our debriefing the next morning and look at each other and say, why did they do that? Not that we've ever done that. MR. HUNSINGER-I was thinking of one time there was a tabling motion, and I don't remember the specifics of the case or whatever, but there was a specific tabling motion, and the applicant was asked to submit certain information, and you called me, and you read the resolution literally, and if you read the resolution literally, they could never comply with the request, and like I said, I don't remember what the detai.ls were, but I remember you called me and you said, well, this is what they gave us.. It doesn't comply with what yOU guys asked for, and I said, well, you know, it was 11 :30 at night, this is what the discussion was. This was the intent of the Board. It sounds like they met the intent of what we were looking for, but, yes, they haven't met the letter of the law with the tabling resolution. MR. BROWN-Yes, that's not to say that we don't exercise some discretion on what we think you mean in your tabling resolutions, but. MRS. STEFFAN-That particular project came back four times until we worked out the details. MR. HUNSINGER-Probably. Yes. MR. TRAVER-Yes. I'd like to talk a little bit more about the issue of enforceability, because it's certainly been a common experience, I think, that governments have to ration enforcement. I mean, how many of us today saw people talking on the cell phone driving a car. Okay? MR. HUNSINGER-Every day. MR. TRAVER-Exactly, and the example I think that we're confronted with most frequently is the example that Gretchen gave, where we're trying to protect the lake, for example, and we're talking. about fertilizer. Now, do we have an expectation that somebody is going to be standing there with a clipboard every time the guy is treating his lawn? Not necessarily, but on the other hand, I can certainly see a time in the future where we might have an army of people desperately trying to enforce that because we may be in danger of losing our freshwater, and it also, I think, has an impact on behavior. Even if there's no expectation that somebody's going to be coming out and checking their garage to see whether they have fertilizer, I think that applicants are impacted by that, and I think that there are a percentage of them that may laugh and say, well, I'm going to go ahead and use, you know, double the fertilizer, but I think, it seems like it's been my experience that they take it seriously, even though they may not realistically expect that they're going to be watched, but I think for those grounds it does have value, even though we don't necessarily have an expectation that your office is going to be, that we're committing you to having Staff dedicated to enforcing every little condition.. I think that there's some behavioral impact and maybe some future precedent that may come in handy at some point. I mean, maybe even closer to the future,l mean, we've had applicants, I've seen applications where they talk about algae blooms and actually property damage caused by, not necessarily the use of fertilizer, but certainly stormwater runoff and things of that type. So I could see hypothetically that we might have an applicant who agreed at some point in the past not to use fertilizer, and then suddenly there's a huge algae bloom that impacts on the water systems of neighbors and so on, and they can trace that back, in fact, to the use of fertilizer. So it's just my feeling that even though not every condition can be realistically, the Town may not be able to put the resources to enforce every little thing. I mean, that's one of the decisions that I know you have to make every day is how do I allocate the limited resources I have, but I still think there's value in putting those conditions on there. 21 (Queensbury Planning Board 5/14/09) MR. BROWN-I can't disagree with that point. It's always nicer, it's always nicer to have that tool in the bag that says you agreed not to do this, if it ever does get to that point of needing to enforce it, but I guess what I'm trying to say is some conditions we're just not going to be able to enforce in the current situation. MR. TRAVER-Right. MR. BROWN-This is approved but it has to be quiet, or the lights can't be too bright,well, those are all nice things, but there's no way to do that. They're all just too subjective. Those are very general. MR. SCHONEWOLF-But for practical purposes, when you issue the CO, Certificate of Occupancy, you're enforcement, I mean, we don't have a Queensbury police, but you're enforcement pretty much comesto an end, unless it's something really drastic that pops up. MR. BROWN-No, not necessarily. Fora Planning Board project, what they're required to do is, Number One, complete all the things, all the items that that they said their going to do in their plan, in addition to all the conditions that you may have put on, and they're required to maintain that. MR. KREBS-Yes. MR. BROWN-So, if next year all the trees have died on the property, and their stormwater basin (lost word) sand, we're going to go and tell them to re-plant all the trees. MR.TRA VER-Or if you get sound complaints or light complaints or something where there's. MR. BROWN-Well, sound isa bad example because there's really no enforcement, no noise ordinance, but, yes, any specific condition, yes, they're required to maintain that for the duration of the project. MR. HILL-Yes. I didn't mean to suggest that those kinds ofthings were unimportant, and I'm sorry if it seemed that way. I didn't mean to cast it in that light, because I think you're. I think those kinds of conditions can raise the consciousness of people that, gee, fertilizer is a concern, noise .is a concern, and I, you know, maybe that gets them to back off the fertilizer or tone down the noise. To that extent it's important, but as you recognize, from a practical perspective, it's just not possible, given limited resources, to actively enforce those kind of conditions. There may be enforcement that's possible after the fact if there's an egregious violation that's evidence by an algae bloom or, you know, some other evidence of a problem, but it's not going to be something that Craig's going to be out, and be able to be out and be looking for all the time. MR. SCHONEWOLF-I think we've got to be careful with that a little bit. I mean, you tell a person he can't put fertilizer on where his house is located. I'll give you an example of the other day when one of our government officials was fertilizing his lawn and a guy stopped him and rip him, and he pulls out the bag and there is some fertilizer that you can put on lawns. I think it's got a (lost word) in it or something. Anyway, you're supposed to use that on your lawns. MR. KREBS-There's no phosphorus. MR. SCHONEWOLF-Right. I think, you don't want to encourage people to be their own cops. I think you've got to leave the enforcement to our professionals. MR. HILL-Well, and then, Craig, I'm sure you've gotten the stories of the tattlers, the people that call in, so and so is doing such and such. It's an enforcement nightmare. MR. BROWN-Yes, well, you know, as much as you might think it's a nightmare, that's, believe it or not, the way we learn of halfof the complaints that are out there. We've got enough to do with project review and day to day stuff. We're not out there patrolling everybody's property with a flashlight saying what are. you doing, and probably more than 95% of the issues that we go on are complaints from neighbors. Well more than half of those are (lost words). So I don't have a problem with tattlers. Otherwise we don't know about those. 22 (Queensbury Planning Board 5/14/09) MRS. STEFFAN-It's doing the right thing. The expectation is that people will always do the right thing, and unfortunately. MR. HUNSINGER-Exactly. Anything else on approval conditions and enforcement? Mike, I guess you're free to go if you want to call it an evening. MR. HILL-Okay. MRS. STEFFAN-Thank you for your help. MR. HILL-You're very welcome. Glad to be with you. MR. FORD-Thanks, Mike. MR. HUNSINGER-There were two other items left to discuss. The first one is timelines for engineering comments and delivery of Staff Notes and engineering, and I know this was something that Don brought up, and said he wanted to talk about at a workshop, and that is. just the whole idea of getting the engineering comments maybe a week earlier than what we have been getting. That way there's an opportunity for the applicant to prepare a response, even if it's nota written response, but present it at the night of the Board meeting. Not, you know, and it gets kind of tricky because it's like, you know, we don't want a lot of new information the night of the meeting, but on the other hand, if the engineering comments are fairly minor and they can be addressed by the applicant, you know, shouldn't we give the applicant the opportunity to address those comments so that we can approve or move on the project that evening? MR. BROWN-Yes. I mean, this may be one of those, be careful what you wish for kind of things. The way to look at project review and engineering and how they go together, is probably more, I think of it as three different scenarios. One, the project goes straight to the engineer first. All the engineering gets worked out. Engineering's flat, then the project comes to the Planning Board for review. If you can't stick with that engineering with the Planning Board's design, or the Planning Board's review of it, you start all over again, or YOlJ come to the Planning Board first, get the project review, and. then go engineer that project. If you can't engineer it the way the Planning Board's approved it, with the parking lot layout and stormwater basin has to be on that side of the property (lost words), if you can't engineer it the way the Planning Board's approved it, you come back to the Planning Board. Third scenario is is what we're doing right now. You do the Planning Board review and the engineering review at the same time. So if a planning issue comes up that may effect the engineering design, that's tweaked a little bit, so that it's going to work. If an engineering design comes up that this has to be (lost words) moved (lost words) plan of the site that the Planning Board's concerned with, that's tweaked and that's fixed along the way. So you don't have the potential for a total re-do of the site that now is all engineered but the Planning Board doesn't like it, so we have to re-engineer it, or it's all planned, but the engineering doesn't work, so I have to re-do that. So, I don't know, I kind of like the go and do the engineering while you do the plan review process, and we're going to, the set up that we're in right now is based on the response that the Planning Board had given us in the past is that we want, the Planning Board wants, the application to go to the engineer one time and come back to us. We want to see the engineer's initial response to the plan in case there's something that we want to see done, the engineer's not going to have them do something different or agree with their concept, before we have a chance to take a look at it, because we might not want that type of design change on the project, not that you guys need to necessarily get into the technical components, but, you know, we don't want to see a bigger catch basin over there. Maybe we want to- see some under pavement stuff or some other option, rather than to work out those engineering details and then have the Planning Board change it. So, I think if we try and get engineering responses back and forth between applicant and engineer, and work the items out before they come to. the Board, I think we're tipping the scale towards one of those sides of the scenario that may result in a lot more work on the applicant's side. MR. HUNSINGER-I was going to ask if I had represented your interests properly. MR. KREBS-Yes, well, I was just responding to Craig. My situation is that we've been here at many meetings, and I hear lots of complaints in the community about our planning organization in this community in Queensbury, because we make people come back and back and back, and jf you're a small businessman and it costs you $1200 to bring your engineer and your lawyer back with you every time you come to the Planning Board, that's $1200 out of your pocket, because if you own your Own business, that's where it comes from, but it's not only that, it wasn't so much a major change that I was 23 (Queensbury Planning Board 5/14/09) worried about is we have these situations where they took six test pits but they only put two on the blueprint. It's got a 24 inch culvert going under the driveway next to the road, but they didn't show the culvert. It's got a power line coming in, but the power line is not on it. So those types of things, if they could get that information, and we have applicants that corne in. and agree to every one. of the engineer's comments, and every one of the Staff comments, but we force them to go back for another month because we don't know that they're going to put that on the drawing until we see it on the drawing. MR. BROWN-Well, there's, I guess, two components to the answer to that question. One is that, you know, we make applicants come back over and over and over. Well, why is that? Well, half of it, or maybe more than .half of it sometimes, through the applicant, is in providing you with the information that you've asked for. They come back 75% of what you've asked for, and the next time 75% of what's left and the next time maybe the rest of the quarter or whatever it is that, the information that they're supposed to submit. That's a portion of it. The other, I guess, potential, and we've talked about this before, a conditional review or a conditional approval. If you have two or three miniscule engineering items that need to be worked out, certainly, you know, it's reasonable to issue, for the Planning Board to issue a conditional approval based on the engineering signoff, and you guys do that all the time. MR. KREBS-But if they don't get the information beforehand, they can't even answer whether or not they can do that little conditional thing. MR. BROWN-Right, and that's not your fault, and that's not the engineer's fault. That's, the burden is on the applicant to get that information in when you guys have requested that they get it in. If they get it in in the time period, and keep in mind, the engineer has a certain window that he, by contract, has to turn information around in, and that's typically 10 days from the time he gets it, with the exception of the regular monthly packets. The engineer gets a packet of information, like everybody here on the Board does. The agreement is that he gets it on the 1stof the month, and then he'll have comments back to the Board the Friday before the meeting that the commerlts are for, and that's the scenario that's been set up, and that usually works out to be about 14, 15 days, versus a month, the third Tuesday of the month. So I'm not sure how much faster we can do that. We don't finalize our agenda until the end of the month. So this month it's going to be the 28th or 29th and we finalize our agenda and decide what you're going to see for the month and decide what to send to the engineer. The following Monday or Tuesday those packets go out, the same time you get them. So there's really not, believe it or not, not a lot of turn around time or a lot of slush time in there where we can get them to the engineer quicker So he can respond back and forth with the applicant. Keith suggested maybe we can find two more weeks we can stick in each month, that might give us some time to do that, but I'm not averse to looking at other options, it's just that. MR. HUNSINGER-I think the ones that get frustrating for us are the ones where it's not the first pass, but maybe it's the second or third pass. Is that fair? MR. KREBS-Yes, right. MR. TRAVER-And also I've come to meetings where I happened to check my e-mail at four o'clock, and so I would get engineering comments through my e-mail, but somebody else on the Planning Board wouldn't. MR. HUNSINGER-Yes. MR. TRAVER'-So we don't have the opportunity to even have the information. MR. BROWN-Yes, and we addressed that with the engineer at the beginning of the year when it was contract renewal time, and we basically expressed that that wasn't acceptable. I mean, we can't be getting engineering comments the afternoon or the evening of the meeting that they're due. They have to come in Friday at noontime is their drop dead deadline. That way we can get them in our packets and send them to you. If additional information, sometimes there'll be, it's not on this agenda to talk about, but maybe it's a topic for another meeting, but, you know" you short table an application. An application is on tonight. We'll have a special meeting the beginning of June to hear your application if you get your information in by, you know, May 30th. Well, there's no time to get that information submitted and reviewed by Staff, Staff Notes prepared off to the engineer, comments back from the engineer, also get them to the applicant to have them respond to the comments. There's just no time to do that. 24 (Queensbury Planning Board 5/14/09) MR. TRAVER-And we're usually advised of that by Staff at meetings. When we elect to do that, we do it at our own risk. MR. BROWN-Well, that's good. MR. HUNSINGER-We do it very infrequently, compared to how, I mean. MR. BROWN-I know. MR. HUNSINGER-I think it used to be a pretty common practice. MR. BROWN-Yes. The timing of it is just (lost words). MR. HUNSINGER-I guess the question, though, that I had is let's say, you know, a project comes inin May, and there's a.number of issues, so we table it until, you know, a July meeting. What's the process for the engineering comments, the second time around? Does it have to go through that same cycle? MR. BROWN-Well, yes. If you get an ap~licant that's on this month, and it's been tabled until July, typically they have the June 15t submittal deadline. MR. HUNSINGER-Right. MR. BROWN-So usually they'll take all those days and submit on that deadline. MR. HUNSINGER-Well, what if they did get them in earlier? I mean, is there a way to kind of speed that one up? I think that's the one where maybe we can make some progress. MR. BROWN-I think you're right. I think that's probably the place where we could make some good progress. Typically what we do now is that package goes in with all the other stuff that goes forthe month. So they're in the same short window, but again, if we send it to our engineer early, and the comments come back and maybe go to the applicant, there may be two or three plan changes that happen between the applicant and the engineer that you guys don't. even see, then they come back to the meeting with this revised set of plans that you haven't seen yet. MR. HUNSINGER-Well, that's a problem, too. MR. BROWN-That's a problem, and the result of that, but I mean I suppose we could do that. I mean, how many iterations do we want to have going back and forth between the applicant and the engineer? It keeps the Board out of the loop. MR. SEGULJIC-Yes, that's my biggest problems. MR. HUNSINGER-As long as Staff's in the loop and Staff has copies of the plans and we need copies of the plan for the meeting. MR. BROWN-Right, and if you have them at the meeting, you could be in that situation that sometimes seems to be an issue, sometimes doesn't seem to be an issue, about getting new information at the meeting. You get the one page, here's what the elevation of my building would look like. Probably not a big deal. If it's 14 pages of new stormwater report and three new Site Plan, probably not what you want to get at the meeting, and you could get either one of those with that back and forth with the engineer two or three times between, you know, the first time and the second time youcomeback, but we can explore trying to do that, I guess. I just don't want to tip that scale to one side or the other of that three scenario thing. It's already designed and now we want to change it with the Planning Board, or we've already planned it and now we have to engineer it. MR. HUNSINGER-Well, I think like anything else it's kind of a juggling act to try to find a happy medium that. MR. BROWN-(Lost words) a fair portion of it, and even a good portion of it, is on the applicant, and I've told this story probably to this Board a couple of times, but when the Wal-Mart came in up on Route 9 there, I sat in Chris Round's office, speaker phone conversation with their engineer. We identified eleven items that we thought that the Planning Board would be concerned with. Told them all those items. Through the course of eleven or twelve months of review at this Board, back and forth, they finally, at 25 (Queensbury Planning Board 5/14/09) the last meeting, X'd off that last item that we had identified with them so early on the process that, but, you know, that's the nature of the applicant. They're. going to push what .they think they can get through, despite what we suggest to do in the review. You guys are the one that give them the answer, and if they can get it past you, that's what they're going to try and do. MR. HUNSINGER-There were also at least two meetinQs when they came to the Board and said, you know, this is our corporate design, we can't change it at all, and we said, well, we.'1I see you later, then, you know, when you're ready to give us something we'll approve, then come back. MR. TRAVER-Well, and that has to do with the point that Don made about the cost of having engineer and counsel at these meetings. I mean, they decide to expend those resources how they want to, you know,as you're alluding to. .If they decide, you know, well, I'm not going to provide them this, and maybe they'll let it go, that's their decision. MR. BROWN-It is, and we've seen it, and Keith's seen it in his short time here. There's probably a handful, maybe a large handful, of regular players that are, that do the majority of the work before both Boards, before the Planning Board and Zoning Board, that from time to time, more than time to time, get information on the 13th and say, well you put an application together for me and submit it on the 15th. So we get four pages out of the required 15, so to speak, of information put together, that's touched on all the things they're supposed to touched on. There's a lighting requirement. There's a landscaping plan, but it's very bare bones, and it gets before this Board, and the Board looks at it and says, well, it's a good start, but, you know, here's 27 more things we want to see, we need to see, before it gets on, and, you know, what we're going to try and do, and one of the things I think one of the handouts you got tonight was a revised Site Plan application. A lot of that, there's.a new checklist in there, and this is a good segway right into that, but there's a . new checklist in that application along with the checklist that identifies all the, I guess, philosophical things that the Planning Board should be considering in reviewing an application. So what the goal is going to be is to ensure that all of those items, and I know I've said thi.s before, and we seem to struggle with it, but ensure that all of those items have been addressed before we decide that it's complete. If B, E, and F aren't completed, they're going to get a letter back that says you don't have a response to this. Your application is not going to be heard. Because it's a waste of the Board's time to look at an applicant that you're going to table anyway. MR. TRAVER-And it saves them money because then they don't have to have an attorney. MR. BROWN-There'll be a painful curve in the beginning where there'll, why are you sending me aware. MR. TRAVER-Well, they'll test. MR. BROWN-They'll absolutely do that. There'll be those regular players who come in with a partial application and try and get before the Board, but it's a disservice .to the Board for the applicant to do that, you know, four meetings to get a (lost words) project done, and the Board gets the bad rap for that, and, you know, I certainly don't want to promote that (lost words). Not that I was promoting it before. MRS. STEFFAN-No, but in performance management there's three criteria, expectations, measurements, consequences. You guys set the expectations, and that's what this package is doing, and so if the applicant chooses not to meet the expectation, we measure their performance, and there are consequences, and so they either. get moved fOrward or they get tabled. We've had situations, and certainly over the last two years, when we are doing more work on an application than they did, and that's not right. I mean, we're spending time planning for these meetings, but it's not our job to plan their Site Plan for them. That's their job. MR. BROWN-Right, but what I kind of mentioned before is they'll try and get what they can past you, but if you don't pick up on something or you find that it's not as important as the application (lost words) maybe it's not important on this application, they're going to skate on that stuff. So, you know, we need to be a little more hard core with what we let through. MRS. STEFFAN-I think we've been better in the last couple of months because we've been tabling things. We actually had decided in a couple of situations we were going to table, and then we did engage in discussion. I think we have to be even better at 26 (Queensbury Planning Board 5/14/09) managing the agenda, and when somebody has not met our. expectations, no discussion, no debate. They get tabled. They get sent away. They don't even get a hearing, and then that way they're not wasting our time, because that's, you know, we end up being here until one o'clock in the morning because they didn't do the work that they were supposed to do. MR. OBORNE- That's one of the processes we're going through right now with the agenda before us is we are being hardcore, from the last 60 days, 30 days, in going forward. MR. BROWN-Yes, and ideally if there's been a tabling motion that says A, B, C and if it's not there, we're not going to get them before you. So you're not going to have to tell them that you're tabling them. We're going to have a very specific the tabling motion that says you haven't met these requirements. There's no need to even put you back on, and, you know, it's Keith's three day rule. Tell them it has to be done, eventually they're going to get it, a couple of tries and they're going to have the problem solved. MR. HUNSINGER-Because in the past we wouldn't be very specific about what they needed in the resolution. It would be clear in the minutes, but not in the resolution, and they'd come back with three-quarters of the information, and we'd hear it and table it. MR. BROWN-Right. MR. TRAVER-And if we're consistent, the professionals will respond to it, too. They'll tell their client, they'll say, look, if you don't do it, you're not gaining anything by not giving them what they need, because they're not going to move on it. MR. BROWN-And an example that comes to mind, and this isn't criticism. I guess it's constructive criticism, but a tabling motion that says address Staff comments and engineering comments. Well,there's probably 15 different comments that Staff Notes addressed. If there's a specific item that comes out of there, you know, rather than say, address Staff comments, please address the traffic concerns at this intersection or the sight distance at these areas or the slopes, or whatever the issue is, specific conditions, or 4, 5, and 6 on the engineering report. MR. KREBS-Right. You may have noticed in the last couple of months that we have started because Keith's been saying. MR. HUNSINGER-Well, what I was going to say is, the times that we're vague is because the list is this long, and the application is so incomplete, and we can't be specific. MRS. STEFFAN-Yes, and that's annoying, because we shouldn't even spend five minutes on it. It should just be, you've got 27 outstanding VISION Engineering comments, and you haven't addressed Staff Notes, so we're going to table you, and you're not going to come back until such and such, and just send them away, but we don't. We end up discussing it. MR. BROWN-Well, we can certainly do that. The only risk that I see is that an applicant chooses to complain either to the Zoning Board or the Planning Board, and maybe tothe Zoning Board to the effect that, they haven't put my application on. They've deemed it incomplete. I'm challenging that determination, and as long as, if it comes back to this Board for, well, what do you think, you know, if there's some backup there that says we don't want to see these applications until they're complete, that'll work. In the past, not so much with this Board, but in the past those issues would come up, and we'd hold and application from being put on, and they'd eventually whine and complain enough, and we'd put an application back onand they'd getto the Board, and the Board would say, that's not a problem. I don't know why you were held up so long. That just undermines our credibility when we try and do that, you know, front line defense for you, so to speak, when, if they do an end around, you know, they're handed the touchdown, you know. MR. KREBS-That's why having occasional meetings like this is so important. MR. HUNSINGER-Yes. MR. KREBS-Where we get together with you and discuss them, so that we're on the same page. 27 (Queensbury Planning Board 5/14/09) MR. BROWN-Absolutely. I guess what you'll see in that new application is the checklist item that goes through plot plan, storm water stuff, deeds, north arrow, property lines, that's all taken right from the new Code, it's very specific. . Some of the things have been added, snow storage, some of the items that we've talked about in the past. Thisgoes back to something that Gretchen and I were going to work on at one point. I apologize for not carrying that ball very far, but now that we've got the new Zoning Ordinance, I think a lot of it's taken care of in there, and then the page after that checklist are, you know,. here are the, basically the design criteria for any kind of project that the Planning Board's going to look at. I kind of envisioned that that's going to be maybe even a template for the new Staff Notes. MR. HUNSINGER-I was going to say, are you on Page Six? Six and Seven? MR. BROWN-I guess Page Five; MR. HUNSINGER-Page Five. MR. BROWN-Six and Seven are the actual checklist of application materials they need to have on their drawing and such, but Page Five is, you know, a list of the concepts that the Planning Board should consider, not so much (lost words). MR. HUNSINGER-We used to have a review sheet for Site Plan Review and then we had a separate one for Subdivision review. MRS. STEFFAN-I brought that, as a suggestion to go back to. MR. HUNSINGER-I have it with me .all the time. It's in my briefcase, but we kind of got away from that at one point. I'm just wondering if maybe we could come up with a template and maybe attach it with.the Staff Notes when it comes to the Board, and then we, as individual Planning Board members, could go through and check it off. MR. BROWN-Sure. MR. HUNSINGER-And, you know, maybe we could take Page Five and, you know, condense the verbiage into bullets with a checklist or something to that effect. MR. SEGULJIC-But, I guess, is your plan to use this,check this off? MR. BROWN-Well, no, I guess the plan is, when this application goes to an applicant, at the top there it says please prepare responses to each of the following topics. So when an applicant comes before you and submits their application, they're going to give you their take on these items. This complies with the Town Code because. This is a, complies with the septic ordinance because. This is in harmony with the Zoning Ordinance because, and they'll give you all their responses to the. MR. SEGULJIC-So there's going to be a written response to each of these? MR. BROWN-Well, that's the goal. I mean, we can certainly change this application if this is the Board's application, but in an effort to get as much information to you before you're forced, not forced, before you're required to make a decision, why not let them provide answers to all the criteria that you're supposed to be using for the Zoning Code when you review this Site Plan application? Explain, you know, sell your project to me. Here's what I'm going to use for my review, so why not give me your take on the things I'm going to consider. MR. HUNSINGER-No, and that was something, you know, Don and Gretchen, you might remember when we were going through the Ordinance, that was one of the things that we had talked about at the meetings is having some kind of a checklist, and I remember specifically George Homsy saying that that would be something that would be done or we could do. MR. SEGULJIC-So you're envisioning this being like a project narrative, then? Okay. MR. BROWN-Exactly, yes. It could be rolled into a project narrative as long as you touch on all these things, you don't have to have A through 0 spelled out specifically, but if your project narrative touches on all these things, and you use these things when you do the project review, and we can parse this down to maybe one sentence per each item instead of five or six in some of them, and then if you go through like you suggested and 28 (Queensbury Planning Board 5/14/09) ~ MR. BROWN-And then a little bit earlier in your application, I think it's maybe on the previous page, maybe four, I added a new question at the top of that page that some are going to be good to know about based on the new New York State stormwater pollution prevention plan that the Town of Queensbury, as an MS-4, is required to monitor and document some of these things. So, it's the applicant's project. Get the information from the applicant. Let them answer some of these questions right off the bat. So We can make some threshold judgments on disturbance of the project, cost of the project. If you guys are going to b~ interested in the future in performance bonds or escrow accounts. If you know that it's a million dollar project, you're going to look for a different number than if it's a $10,000 project. So if we can just (lost words) up front (lost words) as you go along, and that's, this is, again, a draft and if you have questions that you want to put in there, we can add them in there. MR. KREBS-The other. thing that this checklist would do for us is that oftentimes the applicant comes with all the information but it's in a letter form, it's on a drawing. If he came with a list that was similar to our list, it would be much more efficient to go through it at a meeting. MR BROWN-And discuss point by point. MR. HUNSINGER-Sure, yes. MR. KREBS-Yes. MR. OBORNE-So I could just use that and attach it as a boilerplate to my Staff Notes, send that out. MR. KREBS-Yes. MR. OBORNE-It would be difficult, just to let you know, that when I do Site Plan Review, obviously I'm doing it on what is before me, and it's not going to be in a chronological order like it is on that list. So you get my review, and then. on the back of that we'll just staple a boilerplate. So, you know, you can juxtapose it against what their answers are. MR. HUNSINGER-Yes. Again, I'm thinking of a checklist for each individual Board member. MR. OBORNE-On each Staff Note that comes to you. MR. KREBS-Yes. MR. HUNSINGER-Well, no, on the items on Page Five, the requirements for Site Plan approval, you know, that A through. MR. OBORNE-Do youwant, do you want one and you have the responsibility of bringing it to the meeting? Is that what you mean? MR. HUNSINGER-Yes, a blank one. MR. OBORNE-Sure. MR. BROWN-Like one sentence of bullet items (lost words) space for comments, and that'll be the cover page for I guess each application. MR. HUNSINGER-Yes, maybe it could go behind Staff Notes. I mean, I don't care how you package it. 29 (Queens bury Planning Board 5/14/09) MR. KREBS-But if we set the expectation with the applicant that we.'re going to start with A and go through 0, they come with their information A through 0, okay. MR. HUNSINGER-You would think. MR. KREBS-You would think anyway, and if they don't, then that's their problem, not ours. MR. BROWN-And ideally if all that information's there and it's not an involved SEQRA review, you probably could make a fairly well informed decision in one night, and maybe . with limited review, depending on how the public hearing goes, and the questions that comes up. MR. HUNSINGER-Well, you know, and that kind of, you know, one f the things that we often talk about is, you know, the whole well, they satisfied engineering, you know, kind of comments. I mean, the real places where the variables are, and where the Planning Board input comes is things like landscaping and lighting. So there's always going to be kind of some discussion. MR. BROWN-And discretion. MR. HUNSINGER-And discretion, yes. MR. BROWN-And some of the questions that these guys were making earlier on. I look at the Planning Board as the teachers in the class, and the applicant has filled out the test, and you're going to grade that test. You might have a curve when you grade. You might say we'll give you partial credit for this one and you're going to get an 87 instead of a 100, but, it doesn't have to be 100 to pass. You can give them passing grade without maybe getting all of the I's dotted and the T's crossed. That's the discretion that the Board has with virtually everything that's in here. If it's a dimensional thing, absolutely it's a Zoning Board issue, but a lot of this subjective stuff, that we'd like to see this kind of tree, we'd like to see that kind of tree (lost words). MR. HUNSINGER-Now, I mean, some of the concepts that were introduced in the new Zoning Ordinance, one is the concept of performance zoning. I mean, how do you address that in some of these standards, where it's more subjective? MR. BROWN..Performance zoning? MR. HUNSINGER-Well, I mean, it's not spelled out that way, but the concept is, you know, there's, and some of it got watered down in the final adoption, but, and I wish I could think of a specific instance of where the focus isn't as much on use as it is on how the site functions. MR. BROWN-Yes. I think the best example ofthat is, and it maybe rolls into the last item on here, kind of an executive summary of the new zoning, Main Street. A lot of the standards, generally what you're going to find with the Zoning Ordinance is residential development, you know, a lot of the SR-1 A, SR-20, SR-10 zone districts, have now gone to a district known as MDR which is Moderate Density Residential. The big change there is the setbacks have gone up. Minimum lot size has gone, in some cases, from 20,000 square feet, to (lost words). Most places by two when it goes from one acre to two acre, but, so general theme, residential development is going to be difficult, more difficult to do, I think, for the majority of the Town, because that MDR zone covers the majority of Ridge Road is undeveloped, most of all the west side of the Northway. The exception there is going to be previously approved subdivisions. In that case you're entitled to use the setbacks that were in place when that subdivision was approved. So if you've got a 1968 subdivision, you don't have to deal with these new setbacks. You have to use the old setbacks anyway. So residential tougher. Commercial, not that commercial is geared to be easier, but when you talk about maybe some relaxed or different standards to apply, not so much on the use of the project, but how the site works with other sites. Main Street is the big thing that I can think of, you know, where sideline setbacks are anyplace from zero to 20 feet. So if you want to, if you have an easement agreement with your neighbor and you want to butt your buildings together and have more of a streetscape, as long as the flow of the traffic, pedestrians in front and the streetscape items all work, you know, how the setbacks are met or how the landscaping is done is more flexible to kind of promote activity in certain areas. 30 II (Queensbury Planning Board 5/14/09) MR. HUNSINGER-One of the other big changes is the, we have the build to line as opposed to a setback. MR. BROWN-That's correct. There used to be, a couple of days ago the build to line was 42.5 feet from the center of Main Street. That's changed to 21 feet from the edge of the pavement. Mathematically, I don't know how much difference it makes. It's just going to be a little easier to deal with. Once they widen the street, the centerline may be (lost words). Yes, build to lines, you know, parking standards are minimum parking standard requirements on Main Street don't apply. It's all discretionary with the Board. If you've got an. agreement to operate your restaurant next to your neighborhood bank, and your hours are opposite, then there's no conflict in parking. So you should end up sharing parking. I think the goal is to stimulate something down in that area. Whatever it is, it's pretty much fair game, because the zoning allows for a lot of different types of uses,.a mixture of commercial retail on the first floor, residential second floor. It's pretty flexible. So that's a real general overview. I guess I wasn't really prepared to do an executive summary on the whole Zoning Ordinance, but predominantly it's more difficult for residential, again, maybe n.ot easier for commercial, but definitely. easier to understand what's expected of the applicant (lost words) checklist items (lost words). MR. HUNSINGER-When will we start reviewing projects under the new Code? MR. BROWN-Well, probably June or July, maybe July. MR. OBORNE-Probably July. MR. BROWN-You've got a bit of a back log now of applicants. MR. HUNSINGER-Right. So if the application was submitted before? MR. BROWN-The 12th. MR. HUNSINGER-So this list that Keith gave me that shows. MR. BROWN-That's probably a mixture. MR. OBORNE-Yes, that would be mix, absolutely. MR. HUNSINGER-Okay. MR. OBORNE-I think that alludes to my gaff saying that we have two Codes. Well, it's going to be a while for us to run through what's in the pipeline right now. MR. BROWN-We're trying to clean up all the old on one agenda, if it means 11 items or 14 items, and then just do the next meeting at the new information. Will it work out that way? I don't know, I haven't tried to. MR. SEGULJIC-Well, that would be helpful, because I can see it being very, very. MR. KREBS-When will we get the new, I mean, we've got a package. MR. BROWN-It was adopted by the Town Board on the first meeting of the month. Sent to the State, that was filed in the State on the 6th, I believe, and officially we have to wait 10 days, it has to be advertised, and then the date is 12th. So it's been official on the 12th. It's gone out to publication. Hopefully in the next couple of weeks we'll have hard copies for everybody to use, well in advance of any time you have to actually sit down and review an application. MR. HUNSINGER-Okay. MRS. STEFFAN-It's going to take a while. MR. HUNSINGER-Yes, it's going to take a while. MR. BROWN-Some portions of the Town when they did the Zoning Ordinance didn't really change too much. Waterfront Residential, really the only thing that changed, two things that changed in Waterfront Residential, it's two acre minimum lot size requirement now, and the Floor Area Ratio, while it's still at 22%, what counts towards that 22% has been upgraded to include any attics or basements over five feet in height. So no longer 31 (Queensbury Planning Board 5/14/09) will the unfinished basement, if it's over five feet tall, that counts as Floor Area Ratio now. MR. FORD-That's only in Waterfront Residential? MR. BROWN-In Waterfront Residential. MR. HUNSINGER-Yes, so no more, it's really not living space. MR. SEGULJIC-Isthe plan to use these new forms, then, because they all look very good? MR. BROWN-Yes, the plan is to go ahead and use this new form. MR. HUNSINGER-I was going to ask that, are you looking from feedback back from the Board, or? MR. BROWN-Well, yes, I mean, obviously it's new stuff to you tonight. MR. SEGULJIC-From what I see, it looks very good. MR. HUNSINGER-Yes, I agree. Like everything else, if there's major problems with it, we'll change it on the fly. MR. BROWN-Well, we'll go with this, and what we'll do is we'll bbil down that Page Five to kind of a bullet list, like an outline for your review. You can comment on those. MR. HUNSINGER-Okay. Good. MR. FORD-Thank you. MR. SEGULJIC-So starting not this month, but I guess in July? MR. BROWN-It'll probably be in July. MR. SEGULJIC-When we'll start seeing this. MR. BROWN-Based on the backlog of May stuff. I'm not sure, I might not even been July. It might be a split in July. Maybe one, the first meeting is to clean up the old, and then the next meeting in July. MR. OBORNE-And a lot of it is going to depend on what goes on in this cycle, too, coming up. MR. BROWN-Exactly. MR. TRAVER-How many things we table. MR. OBORNE-Exactly. MR. HUNSINGER-And tomorrow's the deadline. MR. BROWN-Tomorrow's the deadline. Sol don't anticipate too many more applications coming in. MR. HUNSINGER-So we, I mean, we, as a Board, haven't really had a lot of time to think and talk about, you know, training or implementation ofthe new Code. I mean, Staff, I think, has been more involved with that than we have. Did you have any suggestions or thoughts about training or review or? MR. BROWN-Well, we can, if you want, maybe schedule another workshop like this where we can actually break down, you know, the major changes to the Code. MR. FORD-I think that would be extremely helpful. MR. HUNSINGER-What do people want to do? MR. FORD-I would like to see it. 32 . .. (Queensbury Planning Board 5/14109) MR. BROWN-I guess another one of the highlights, it depends on what side of the fence you're on, I guess (lost words) if an application requires both Planning Board and Zoning Board approval, the Code now requires that that applicant come to the Planning Board first and get a recommendation from this Planning Board, before he even goes on the Zoning Board. So it basically takes the Zoning Board, to Planning Board, back to Zoning Board and back to Planning Board, and makes it a three item process now. Where the Zoning Board had the discretion to do that referral bit before, you know, I guess the Town Board saw the wisdom to, let's get as much information out there to both Boards before either one makes a decision, and in this way the Planning Board's going to give a recommendation before the Zoning Board can act. I'm not sure how well that's going to go with the Zoning Board, but. MR. TRAVER-Well, that's pretty much been their practice lately anyway. MR. HUNSINGER-Yes, I think that's why it was written up that way. MR. BROWN-Yes, we've been trying to push them into, you know, here's what makes good sense. Why not gather as much as you can before you decide. MR. TRAVER-One workshop that might be helpful, along those lines, would be to, because one of the difficulties that we have sometimes is framing that recommendation. Sometimes we.. have, very often we don't really feel like we. can make a specific recommendation, but maybe having a meeting with them to talk about, you know, what kinds of information is useful, and how to handle situations where, you know, maybe we're not ready to make a recommendation. I mean, clearly when we can, we know what they're, generally they're, usually it's spelled out. Staff usually spells out, you know, specifically what they're looking for, but, you know, how to handle, for the process coming forward, how to handle those situations where, you know, maybe we can make a recommendation on part of it, but not the other, you know, and coordinate that. MR. BROWN-Yes. If you can focus the recommendation on what the variance is for. This variance is for the number of parking spaces, you know, the recommendation doesn't have to get into, we like the entrance to the parking lot or we like the landscaping. It's just, you know, we're comfortable with the number of parking spaces as proposed or configuration should, you know, you may want to consider re-configuration, to have more spaces here versus there, you know, focus .on what the variance request is, and not have to worry about the rest of the (lost words). You can get a first look at it, so you're ready for it when they come back for Site Plan, you've had that initial rneetwith the applicant, but as far as the recommendation to the Zoning Board, you know, obviously it's just focused on what the variance is for. MR. TRAVER-Yes. I think what sometimes happens is we get in a kind of Catch-22 where we want to make a zoning recommendation and yet the plan isn't really necessarily complete, and the two are interacting ina way that can be very, very hard to get your arms around and say, well clearly, you know, we're comfortable making this recommendation to go ahead and grant this variance when we don't necessarily know how that's going to look when it's in three dimensions, you know. It's not always like that, fortunately, but it's just, I mean, maybe there really isn't any answer except to just deal with them one at a time, but that's the biggest problem. MRS. STEFFAN-See, I think the Page Five form that's going to be created will help us with that. MR. TRAVER-Yes. MR. KREBS-Yes. MRS. STEFFAN-Because then it'll identify some of the criteria that we need to be looking at, depending on what the variance is for. MR. TRAVER-Right. MRS. STEFFAN-Itprovides us with some language,andsome parameters to evaluate. MR. TRAVER-Of course, we ask for, you know, we'll say, well, you know, you need to have a lighting plan. They'll say, well, we want a waiver for that. We're right back where we started from. MR. HUNSINGER-Yes. 33 (Queensbury Planning Board 5/14/09) MR. BROWN-There's always exceptions where that probably makes sense to do. MR. TRAVER-Sure. MR. BROWN-And I know this as much as the next guy. Nobody wants to be the bad guy. Well, two people .Iike to be the bad guy. MR. HUNSINGER-I was going to say,. some people take great pride in being the bad guy. MR. BROWN-The more you can say, this is information we need. We're not going to grant these waivers, this information has to be submitted, put it together, the less they're going to ask for it, but, I say that, there are exceptions. MR. TRAVER-I think if we're consistent and we're firm, I think if we're consistent and we're firm with this, it will, I mean, there will be some testing, but I think over time, the professionals will say to their applicants, you know, things are different now, and we really need to, you know, this is what we need. MR. BROWN-Well, things are different now. The Planning Board's tough, but I'm out of there in one month with a review. MR. KREBS-Right. MR. TRAVER-Right. MR. HUNSINGER-Well, that would be the goal. MR. OBORNE-And it starts on the front end. It starts right at the pre-application meeting. MR. HUNSINGER-Absolutely. MR. OBORNE-So, you know, that's where it starts, and I have no problem being the bad guy. I don't necessarily want to be, but it's going to happen, it's going to happen. MRS. STEFFAN-No, but we're all on the same page, Keith, because if they think that they want to apply for waivers, because they don't want to provide you with what you're asking for on our behalf, and they get here, we just say no, because we have to reinforce our consistent standards. MR. OBORNE-And this Site Plan application is a comprehensive tool to gather that information also and make your job easier, segwaying or coming full circle with the recommendations. MR. BROWN-And justso we know, we, with every Site Plan pre-application meeting, we are clear with the applicant that we're guessing that the Planning Board's not going to give you the waiver for this. If you want to ask, it's your right to ask. MR. OBORNE-Right. MR. BROWN-But we don't say, I mean, it's clear that this is required information that you have to submit. You can ask, but you're probably not going to get it. Doesn't stop them from asking. MRS. STEFFAN-But at least now, I. mean, all the work that's been done over the last couple of years to put the Comp Plan in place and the new zoning, you know, we should be, or all of our thoughts should be in harmony here. I mean, we know what we want for the Town. The folks who came to all the hearings and participated in the process identified what we want the Town to look like going forward, and so now we've got the direction that we need to make better decisions. Finally. MR. BROWN-It's our charge, the Board's charge, to make sure that the Town is developed with (lost words) identified, not the developer's to say, I don't want to do it that way (lost words). (Lost words) you're going to do it this way, you're going to follow the rules. MRS. STEFFAN-Right, this is our Town. 34 (Queensbury Planning Board 5/14/09) 1. -,. MR. BROWN-This is our Town. We're driving the bus. You're riding. MR. HUNSINGER-Was there any other point you wanted to bring up under the new Code discussion? MR. BROWN-Not that I can think of. I'll try and come together with a summary. MR. HUNSINGER-Okay, and, you know, we'll continue to talk about it and think about it. MR. BROWN-We're going to get you those copies as soon as we can. MR. HUNSINGER-Okay. MR. BROWN-We'll stick it in the machine before we get the official published copies back from the Clerk's Office. We'll try and do that. We've been having some mechanical difficulties. MR. HUNSINGER-Okay. MR. TRAVER-Maybe something that would be a handy tool for the major points that are likely to impact the planning process would be some kind of a matrix where there's old and new, you know, and what the impacts are. MR. OBORNE-I think Pam does have a mock up of that. Yes, I think so. MR. HUNSINGER-I was going to say, I thought we did something like that. Yes. MR. OBORNE-I'II ask her tomorrow. MR. SEGULJIC-Is there an electronic copy of the Code available? MR. BROWN-Well, the draft on the website is very close to what was adopted. There were some minor tweaks with some wording of the (lost words), but that draft is 99%. MR. SEGULJIC-Okay. So we can work with that, then. Okay. It makes it easy to search, then. MR. BROWN-Yes. MR. TRAVER-I had a follow-up question that I think relates to the new, some of the new zoning, with regards to the signage. I know there were some regulations regarding digital signs, and one of the questions that we've talked about a couple of times. I'm not sure we ever really figured out exactly where we were, is are all of the signs that have been erected in the Town that are now digital grandfathered, or do they have to come into compliance within a certain timeframe? MR BROWN-That's a good question. I think the last time I read it said that there was some sort of a sunset provision that gave them like six months. MR. HUNSINGER-Yes. They were given a certain amount of time to come into compliance. MR. BROWN-That would mean all the existing ones have to be removed. MR. TRAVER-So if we don't ask you to enforce any fertilizer for a year, can you clean up all the digital sign? MR. BROWN-We can, but keep in mind that their option is to come to our Zoning Board and say .1 want to ask for a variance. MR. HUNSINGER-Ask for a variance, yes. MR. TRAVER-I think as long as there's a process, everybody will feel better. MR. HUNSINGER-I think the Code, though, said that, the Code is pretty specific. Well, I guess by law a variance has to be allowed. MR. BROWN-But, so you know, the next two steps after, now that the Comp Plan and Zoning is done, is to look at our Subdivision Ordinance and revise that. The major 35 , } (Queensbury Planning Board 5/14/09) change that's going to come. there is some sort of a conservation subdivision package where you get more, maybe you get some density bonuses for more open space or green (lost words), and then after that's done, Sign Ordinance, which isa document that was done last in the 70's. So it's time to get that updated. MR. HUNSINGER-Wow. MR. FORD-Is it ever. MR. BROWN-Yes. So we've already changed it to prohibit electronic billboards because we had a (lost word) civic center style billboards (lost words), and then the recent ones with the electronic stuff. Well, actually that covered the electronic stuff. MRS. STEFFAN-Yes, we've been pretty specific in our motions on that. MR. HUNSINGER-Yes, no digital signs. Is there any other items to be brought up, any other discussion? Questions, comments? I had a very quick item. I don't know if everyone has completed their oath of office, but I wanted to bring that up as a reminder if you haven't that you need to. MR. TRAVER-Well, we were told we had to do that before the first meeting. MR. SEGULJIC-Signing the form, correct? MR. HUNSINGER-Yes. MRS. STEFFAN-But you still need drivers licenses? Because I didn't give you mine. MR. BROWN-Yes, if you plan on driving the Town vehicle, I think we should get a copy. If you don't ever plan on doing that, then, no. It's only for insurance purposes. MR. HUNSINGER-Whodo you need to give it to? MR. BROWN-The Accounting Office. MR. HUNSINGER-Okay. I'll take care of that tomorrow. Is everyone going to be at both May meetings? MR. FORD-I am not sure about the second one. I've got a closing in Malone as soon after the Memorial Day weekend as possible, and that would be that Tuesday. MR. HUNSINGER-Well, except our meeting's on Thursday, Tom, the meeting's on Thursday. It's on the 28th. MR. FORD-Okay. Thank you. MR. HUNSINGER-Any other business to be brought up? MR. SEGULJIC-Just a question, what happened with General Timber? MR. HUNSINGER-We tabled it. MR. SEGULJIC-Just tabled it? MR. HUNSINGER-Yes, they're changing the plan and they've got to come back with new information. We tabled it until July. MR. SEGULJIC-What's happened with SEQRA? MR. OBORNE-Nothing, at this point, has happened, Tom, with SEQRA. MR. SEGULJIC-So it's gone to the DEC, probably? MR. OBORNE-Well, at this point it seems to be heading that way, but we may, you may be on a holding pattern at this point. MR. SEGULJIC-Okay. 36 (Queensbury Planning Board 5/14/09) v '7 ... '. MR. HUNSINGER-Again, Steve, welcome aboard. If you have any questions, feel free to ask. Anything else? If not, I'll entertain a motion to adjourn. MOTION TO ADJOURN THE QUEENSBURY PLANNING BOARD MEETING OF MAY 14. 2009, Introduced by Gretchen Steffan who moved for its adoption, seconded by Thomas Ford: Duly adopted this 14th day of May, 2009, by the following vote: AYES: Mr. Traver, Mr, Krebs, Mr. Ford, Mr, Seguljic, Mrs. Steffan, Mr. Hunsinger NOES: NONE ABSENT: . Mr. Sipp On motion meeting was adjourned. RESPECTFULLY SUBMITTED, Chris Hunsinger, Chairman 37