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1991-07-22 SP '-' MTC.# -../ f' l E (Opy RES. 397 - 393 (Plon/Bd Res. ) SPECIAL TOWN BOARD MEETING JULY 22ND, 1991 6:05 p... BOARD MEMBERS PRESENT STEPHEN BORGOS-Supervisor '. GEORGE KUROSAKA-Councilman(entered meeting after executive session) MARILYN POTENZA-Councilman RONALD MONTESI-Councilman BETTY MONAHAN-Councilman(entered meeting after executive session) TOWN ATTORNEY . PAUL DUSEK PLANNING BOARD MEMBERS PRESENT Peter Cartier, Chairman Nicholas Caimano James Martin Carol Pulver Edward LaPoint Timothy Brewer James Hagan SUPERVISOR BORGOS called meeting to order. RESOLUTION CALLING FOR EXECUTIVE SESSION RESOLUTION NO. 391, 1991, Introduced by Mr. Ronald Montesi who moved for its adoption, seconded by Mrs. Marilyn Potenza. RESOLVED, that the Town Board of the Town of Queensbury hereby adjourns from Regular Session to enter Executive Session for the purpose of discussion regarding Personnel Matters with the Queensbury Planning Board. Duly adopted this 22nd day of July,1991, by the following vote: Ayes: Mrs. Potenza, Mr. Montesi, Mr. Borgos Noes: None Absent: Mr. Kurosaka, Mrs. Monahan Councilman Kurosaka and Councilman Monahan entered meeting. RESOLUTION CALLING FOR REGULAR SESSION RESOLUTION NO. 392, 1991, Introduced by Mr. Ronald ~ontesi who moved for its adoption, seconded by Mrs. Marilyn Potenz~. RESOLVED, that the Town Board of the Town adjourns~from Executive Session and enters of the Town Board. of Queensbury hereby into Regular Session Duly adopted this 22nd day of July, 1991, by the following vote: , : ,Ayes : Mr. ~urosaka, Mrs. Potenza, ~d," ':': Bo'rgos Mr. Mont,e s i ""Mrs Monahan, Mr.', Noes: None Absent: None DISCUSSION REGARDING LEAD AGENCY OF DIEHL REZONING Supervisor Borgos-The purpose,of this meeting this evening' is to :'try ,to resolve a long standing problem related to ,which one of the two 'groups here, the Planning Board or the Town Board will . assume the lead-agent roll in review of a particular request for '------ J rezoning on upper Sherman Ave. Much has been said in the press about this, much has been said at Town Board meetings and Planning Board meetings if you have read the minutes. I think it is good for the 'public to get a real quick review from our Town Attorney who has in many respects been caught in the middle of this, certainly has done a great deal of research on the subject ... introduced Mr. Dusek \ Attorney Dusek-I have from time to time spoken to the various boards and given some initial consultation, to bring us up to date. First of all the situation as the Supervisor has explained a lead agent for SEGRA purposes must be agreed on. The SEGRA law provides that of all the potentially involved agencies and involved agencies would mean any agency that would be authorized to approve the plan or issue a permit of some kind' of all the involved agencies and in this particular case a rezoning project one of them has to be the lead agent which would be primarily responsible for going through the SEGRA process getting the applicant through the SEGRA process. Usually the lead agent status is agreed to among the parties and is re~~ly not a major issue. In this particular case the two boards have indicated that each one of them would like to be the lead agent. As both boards know I have explained in the past that I have felt slightly uncomfortable because obviously as Town Attorney I represent the Town Board and I have also from time to time represented the Planning Board and on a regular basis Karla Corpus does sit in on the meetings and render opinions. Normally we do not have any problems because you both are doing different types of issues so we do not run into conflict situations. In this particular case I was concerned so I alerted everybody to that concern and I have tried to proceed as carefully as possible and will continue to do so tonight. One of the concerns that was on my mind as I started to prepare for tonight to give you this advice because I know that there is a sensitivity that I might be more persuaded by one Board over the other I know that has been a concern that has been raised in the past so in preparing for tonight just so you know I at this poin~ I am speaking to the Planning Board and I am speaking to the Town Board as the Town Attorney for the Town of Gueensbury at that moment. Why do I say that? I am just emphasizing that to you now because I see, myself as Town Attorney as giving counsel to the Town Board representing the Town Board I represent the Planning Board as well as officers and other boards of the town. But I also have a role and I think a responsibility to the Town itself, the corporation the municipal corporation itself. So it is in that responsibility and in that' capacity that I speak to you tonight I am trying to speak objectively in order to hopefully assist in bring this matter to an easy resolution tonight. The SEGRA regulations provided for by DEC indicate that once you get to the point where lead agency cannot be agreed upon anybody the applicant any involved agency can request the DEC Commissioner to make a decision as to who should be lead agent. The regulations also set forth the criteria that is used by DEC in making the decision and just to read for you briefly the criteria which I know at one meeting I read to the Planning Board, the following criteria in order of importance shall be used by the Commissioner to designate the lead agency 1. Whether the anticipated impact of the action being considered are primarily State wide regional or of local significance, then there is some bracketed materi~l but. in that particular case that does not apply because this is a local problem there is no St~te organization trying to claim lead agency status. Second criteria, which agency has the broadest governmental powers for investjgation of the impact of the proposed action? Third criteria is which agency has the greatest capability for providing the most thorough environmental assessment of the proposed action? The other thing I might stress is that in reading that it says the following criteria in order of importance so therefore criteria number 1 is more important than number 2, 2 is more important than number 3. In this particular case we have already isolated 1 becau.e we do not have regional problem that is out we are looking at criteria 2. From reading the criteria my gut reaction is that the Town Board -- .-.-' should be the logical choice for lead agency unless there is some compelling reason why they should not be. I asked Karla to dig up some more information for me and we were lucky to obtain a couple of decisions from DEC where they have actuallY looked these lead agency questi~ns not on this particular case but on other cases. One decision is a little old itis 1986 the other is newer 1991. One decisioo dealt with the Town of Huntington Town Board and DEC, the local regional office were disagreeing. In that particular case the primary criteria that was looked at was number 1 where it was reg i onal, I oca I and they said it was local. But, what I found interesting in it is that happened to deal with a rezoning matter and the DEC made some very ...comments with respect to rezonings. It said in order for a project to be constructed as proposed the applicant must obtain a zone change from the Town Board and subdivision approval from the Planning Board. In considering the zone change the Town Board will have to assess the needs of the 'community for residential development vs the value of the site as open space. The appropriate density for any subsequent use. The decision on zoning must be addressed before any subsequent decision related to the construction of the site can be assessed. The importance of the zoning decision and the potential for that decision to modify or effect subsequent decision making at the site points to the Town of Huntington Town Board as the most appropriate involved agency to serve as lead agency. This wasn't a çontest between the Planning Board and the Town Board but rather i~ was a contest between the Town Board and DEC but I think the points that they make about the Town Board b~ing the most logical lead agency are certainly important to consider in this particular case. The other thing that the decision emphasizes and think that thi,s, is importa'1t, for both boards to consider and that is, even though we said the Town Board should be lead agent the decision does not in any manner limit or minimize the responsibility of all other involved agencies to review the proposed action and assist the Town Board in completion of the environmental review process. If the Town Board chooses not to entertain a petition to rezone the site as allowed under Town Law ~uch legi~lative decision would not be reviewable and they'go on. So, the message there I think from the commissioner was thàt even though we are saying the Town Board is DEC regional offíce you still play a p~rt here, you still have respons~bilities you should assist the Town Board in their review to make sure the issues that you are concerned about from the SEQRA perspective get reviewed. In addition to the decisions Karla had a conversation with Gail ...an associate council with DEC she indicated that normally the parties do work these issues out themselves, which is what we are attempting to do here. Secondly she iridicated that her opinion was,the Town Board would probably get the nod to get lead agent. They normally have the broadest powers unless there is a good reason for DEC to change their mind they probably would go with the Town Board. At this point my only comments to both boards would be this, that ¡ think the Planning Board has indicated and rightfully so some very sincere sensitivity to environmental questions and making sure they get evaluated. I think the law provides an ample mechanism for them to address their concerns even if they should decide that the Town Board should be lead agent. The other th~ng ¡ would like to say to both board S is based upon then my re search·.. based upon the information that Karla has been able to gather for me I have to. honestly tell you I think that most likely if this thing were to go to DEC it looks to me th~t based upon everything that ¡'have seen that DEC would probably say the Town Board would be lead agent. I have said this as the Town 'Attorneytryin~ to be objective looking at the facts n~t trying to take a side if it had said Planning Board or she had said Planning Board~own at DEC I would have said that to you. But that is not what, I - am telling you exactly what I have researched and what I ha~e heard. So hopefully this will help. Supervisor Borgos-There are two problems, one the immediate concerns of a very specific request on upper Sherman Avenue and the other is what about the future, the Planning' Board in the \,,---, ~ minutes has taken the position at least the majority of them5eem to be taking the position that for all rezoning cases the Planning Board would like to be lead agent, I think that should be discussed. In fairness to the particular applicant ~ho is in front of us now, I thinK we should take care of that fi,rst. It is our hope that we could sway one or two votes tonight 'and get the Planning Board to reconsi'per let us be lead agent and get on with this and then we could get into the discussion about the future. If we cannot the Town Board has made the decision that we wi 11 appeal to the 'comm i ss i oner we do not want to spend' the money we do not want to provide money for the Planning Board legal counsel to spend the money we may if we have to and that will' have to be discussed by the Town Board but it just seems 1 i ke a wast e. , Mr. Jim Martin-Planning Board Member-I would just like to add I also called the State DEC I talked to the Office of Regulatory Affairs' 'and they are the office that is directly associated with the Commissioner and they draft the commissioner determination on his behalf and s~bject to his review and change and commerit. His comment was, I also asked for a history as to how these things t'ypically went and he said he would be remiss to make a guess as to how it would go because every case stands on its own so therefore little insight could be gained by sighting any history on the matter. I delved further into it and I really do not' understand why this has been looked upon as such an awful terrible thing. He made it sound as it was a very matter of a fact type thing if two Boards disagree DEC will then ask the Boards to make written justification as to why they should be lead agent the commissions receive that and within 20 days you have a decision. That's basically, there is no legal presentation to be made there is no, there is no need for legal counsel not unless you wanted assistance in drafting that written response. Supervisor Borgos-Asked if an attorney would be necessary on both sides. Attorney Dusek-Noted that was a decision a client would .have to make ... in this case you draft a letter type applica~ion you subm i t any support i ng document at i on that <you _ fee I would'back up your position and then you send it to the DEC Commissioner, all the parties do the same once the DEC Commissioner and hi~people have received it they will review it and if they need further information they will ask for it or they ask you to further justify various points and he renders a decision. Being conservat~ve if on~ party has a lawyer then the other party probably wants to have a lawyer too. o ~~, Mr. Peter Cartier-Planning Board-Refer you back,toour~~~y 8th meeting minutes, it is our contention at this point to let ,it go ~to DEC I am sure we are going to resolve ,anything\here. Secondly, personally I do not feel this Planning 'Board n~eds an attorney to deal with this situation I think itsstrai~ht forward enough that we can handle it ourselves as a Planning Board. The issue of getting legal counsel as far as my concern is non issue. Mr. Martin-For me personally I know that there has been .some, annoyance among the Town Board that there has been commen~~'from this Board saying there may ~e a political tilt to your. Supervisor Borgos-I was not going to bring that officially ,in your resolution. is - , Mr. Martin-I do not mean that as negative comment when I say your decision may be politically tilted, you are an elected Board and naturally you are going to have a concern for the political 'nature of a project. ~ am a planner by trade and I look upon the SEGRA process as an objective and technical process and I think we an a~ objective Board and especially on a planning related matter can best serve the SEGRA process. We deal witMSEGRA --- '-'" determinations in our meetings sometimes 7-8 a night and 15 a month and we see the SEQRA process from a Planning standpoint, month in and month out we are now in the midst of a major review of the roller coaster draft EIS so that was my reasoning behind it and I am steadfast in that belief it is an objective process and therefore an objective Board that see's the planning issues month in and month out is be"st suited to deal with a SEQRA review of a rezoning. That is why I also agree with it not only for this project but projects in the future. Supervisor Borgos-This is the way the Town Board perceives it we have been dealing with the obj~ctive review subject of course to the fact that we rep~esent thousand and thousands of people who have a chance to review our performance in term~. of what we are doing every two years. The Planning Board could be on for seven years without any kind of review. We f~el very objective we have very carefully, we think, carried out reviews of such projects as the West Mt. Project, Hiland, Earltown, lots and lots of others that we have gone into great detail and almost every month we do one or two almost every meeting we do one or two SEQRA findings ourselves, so we also feel that we have considerable amount of expertise in that area. That is where we are locked here. Councilman Potenza-I think at the last meeting when this was discussed as a Town Board it was my recommendation that we go onto the Commissioner of DEC and let him make the decision and there was a request from ~he floor to perhaps let these two boards work it out one more time. Although I am not a Planner I have the availability of a professional planner and I just find it a very simplistic decision to make. If you read the criteria for the SEQRA as to what board has the responsibility it points to the Town Board because we have the availability of all of the information that is needed. This is why it is hard for me to understand why the Planning Board for the first time in the history that I have sat on the Town Board has decided to take the lead agency status. Peter Cartier-The only comment that I would make, this is not that unique a situation if it were there would be no mec~anism to deal with it and the fact of the matter is there is in place a mechanism. In terms of it goes to DEC and DEC makes a determination and all we are saying is lets make use of the mechanism that is available to us. Supervisor Bargas-Why use it if we could otherwise solve it in house. Peter Cartier-I do not see that happening tonight. Supervisor Borgos-Noted the three to three vote, last time you had someone that said he was new and not up to speed I would hope by now he is certainly up to speed in this matter. Peter Cartier-If you want to address the newest member directly feel free to do that. I am speaking for myself. Councilman Montesi-Behind the issue some of the Board members are asking why at this point? In all candor I recall a letter that the Planning Board sent to the Town Board and specifically said , we certainly would appreciate if you put into place 'whatever you are going to call it an ove~lay zone for affordable housing or if it is for senior citizens but we would like to see you put that in place as quickly as possible for one reason, every time you address a rezoning in some way, shape, form or matter you are degrading or dissolving the master plan. It was my feeling that you were going to put some teeth behind that request you let it set for awhile we did get a draft statement from the Planning Dept. from Ms. Lee York, here is an idea look at it and review it, we as a Town Board have not done that todate. Is that one of the things that is bothering the Planning Board also... Mr. Caimano-What bothers me and I do not know what kind .of teeth ....... J '------ you want, you have... with the people who work for the Town if you do not get what you want from the Planning Dept. they work for you. If you do not like what you get from the Planning Dept. tell the Planning Dept. we cannot do anything about it, we have made the request I would like to see that otherwise we are in the same hassle every time somebody comes up. Superv i sor Bargas-We a 11 want' that we have not put it on the back burner... Peter Cartier-I think what Ron is referring to is that part of the difficulty we are having and my answer is no as far as I am concerned it is an entirely separate issue. Jim Martin-I am not using SEQRA as this wrench in the works , behind this project and targeting this specifically. Councilman Monahan-I would just like a clarification for the people who do not know what is going on here, what we got from the Planning Dept. on affordable housing overlay zone has not even been critique by the Town Board so we are not saying that the work is not up to snuff, what we are saying is we have not taken the time to sit down and have workshop, they have done their part we have not done ours. Supervisor Bargas-The other issue is if you are truly concerned about the environmental impact and I think you are, I recognize the fact and this Town Board recognizes the fact that even if we do a rezoning you will still have site plan review control and final authority as far a environmental concerns. You will have all the authority needed as far a determining where any on site water retainage is any type of road layout networks all those things are totally withjn your power not subject to review by the Town Board, so I am wondering why if you still have that authority why you are seeking to get this authority. Peter Cartier-We are talking about two different things here, we are talking a rezoning vs a subdivision. Supervisor Borgos-Rezoning will only change the density. Peter Cartier-That is a major issue, a major environmental issue. Supervisor Bargas-In this particular case however what is being asked for is almost identical to what the entire surrounding neighborhoods are. Peter Cartier-I cannot_ comment on that because I am nÞt familiar with that. I am not sure for me if that would be a justification for increasing the density of this area at least from the planning perspective. If the density is that high in that area there are some problems and I think we would be making the problem worse if we did something like that. Council~an Kurosaka-Addressing the Planning Board, you have made up your mind that those lots are not big enough how can you make an objective decision as lead agency when you have already made up your mind. We haven't as the Town Board. You have already rev i ewed <~ it and made recommendat ions we are the Board that you. make the recommendations to, we are the only peoþT~ that can give a zoning change, how can yqu make an objective decision on a recommendation that you have already made? Peter Cartier-I think this board capable of making such an objective decision. Councilman Kurosaka-I do not understand it, conflict of interest myself. I think it is a 'Ed Lapoint-Would it be appropriate to just go back on the record and make another motion... /' ~ --../ (It was noted that the Planning Board is still in session) Councilman Monahan-As many of you know I am a real stickler on SEDRA and I really take them apart. I really think the responsibility for SEDRA'on a rezoning belongs to the'Town Board because our responsibilities are much different and much greater than yours. Ours are rea 11 y \ pertai n i ng to we have to be more aware of social needs we have to be aware of long range impacts and I would just ask the Planning Board if I have seen you people work on a SEDRA review have any of you come to a Town Board meeting and watched the ,Town Board work on a SEDRA Review? Carol Pulver-I have, you are right you do take them apart, bit, by bit, by bit. You are very through. 'Peter Cartier-Is there anyone sitting on this Board who is willing to change his vote from the last time, if there is someone willing to change their vote then a motion is appropriate if no one is willing to change the vote then we are just spinning 'our whee 1 s. Ed Lapoint-I would like to go not think we should ask how we the vote. on the record again myself, are going to vote before we I do make Nicholas Caimano-The record should be clear as to how the vote was and what the vote was on. Peter Cartier-Then if we are going to have a motion we are going to have to go through the scenario that we went through last time and that is to rescind our previous motion... (Attorney Dusek noted that the two boards could have a simultarieous meeting....the planning board had not adjourned from its meeting which started earlier in the evening...) (PLANNING BOARD) MOTION TO RESCIND INTRODUCED BY MR. LAPOINT SECONDED BY MR. CAIMANO Motion to rescind the motion Status for the Town Planning Change of. Zone. of May 8th assuming Lead Agency Board regarding Pl-91 the Diehl Mr. Hagan-No Mr. Caimano-Yes Mr. Martin-No Mr. Brewer-Abstain Mr. LaPoint-Yes 'Mrs. Pulver-Yes Mr. Cartier-No Superviso~ Bargas-As an outsider sitting in on your meeting at the moment we thank you I would just comment I do not know how long it is going to take for your newest member to do the research on this issue. Tim Brewer-It's not that I didn't, I did not have any of the minutes as of yet because I was advised to stay out of it:by' our PI anner. Supervisor Bargas-You were advised to stay out of this by your Planner? Tim Brew~r-I won't say that I was advised to stay out of it 1 was . asked if I wanted to get involved- with it and I said at this J '----' point, I am not sure what meeting it was... Carol Pulver-I had asked that he have all the minutes to all the meetings Tim Brewer-I have not read any of the minutes of any of the meet i ngs. Supervisor Borgos-When we appointed you, from that moment on you became a fully active, fully accredited member of that Planning Board. Tim Brewer-And this was prior to me being appointed, this started and I said that I would abstain from all voting on this issue. Peter Cartier-Normally what happens when we g.t a new member, Steve, is if there is any old business still pending, new members tend t'o abstain simply because they have not been involved in everyth i ng. Supervisor Borgos-I would agree with some of the detailed things related to specific project but something of the magnitude of this and with all of the publicity of this and with all the information available about this subject over such a prolonged period of time I cannot imagine anybody not getting involved. Nicholas Caimano-But in all fairness Steve, we have had the action here we have been around a' year or more I do not think we should hang it on one new person I think that is unfair, and I do not think we should do that. Mr. Brewer, we all have our own choke points and he is abstaining for his own good reasons. Supervisor Borgos-He is entitled to, what he wants to do. under the law he may do TOWN BOARD RESOLUTION RESOLUTION TO REQUEST DEC COMMISSIONER TO DESIGNATE LEAD AGENT RESOLUTION 393, 1991, Introduced by Mr. Ronald Montesi who moved for its adoption, seconded by Mrs. Marilyn Potenza: RESOLVED, 'that the Town Board of the Town of Queensbury hereby requests the DEC Commissioner to make the decision as to Lead Agent in the Diehl Rezoning request. Duly adopted this 22nd day of July, 1991 by the following vote: Ayes: Mr. Kurosaka, Mrs. Potenza, Mr. Montesi, Mrs. Monahan, Mr. Borgos Noes: None Absent: None On motion the Queensbury Town Board adjourns. (Town Planning Board) Peter Cartier-Asked the Attorney if they should have similar resolution...and questioned the forms to be used... Attorney Dusek-Noted that there is no forms, a letter form application and submit the documentation...you should entertain a motion on your board... MOTION REQUESTING DEC COMMISSIONER TO DESIGNATE LEAD AGENT INTRODUCED BY MR. CAIMANO ,/ '-'" '-" SECONDED BY MR. MARTIN RESOLVED, that the Queensbury Planning Board hereby requests the DEC Co..issioner to .akè the decision as to Lead Agent in the Diehl Rezoning request. Duly adopted this 22nd day of July, 1991 by the following vote: All in favor On motion the Queensbury Planning Board adjourns... \. -... IJ I\J - ~ ~ ~ . ,.