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1986-11-25 TOWN BOARD MEETING NOVEMBER 25, 1986 TOWN BOARD MEMBERS Mrs. Frances Walter - Supervisor Mr. George Kurosaka - Councilman Mr. Stephen Borgos - Councilman Mr. Ronald Montesi - Councilman Mrs. Betty Monahan - Councilman Mr. Wilson Mathias-Town Counsel 7:40 P.M. PLEDGE OF ALLEGIANCE LED BY SUPERVISOR WALTER PUBLIC HEARING: 7:41 P.M. PRESS: Glens Falls Post Star, WENU GUESTS: Mr. Steves, Mr. Caffry TOWN OFFICIALS: Stuart Mesinger, Mr. William Bodenweiser, Mr. Paul Naylor, Mr. Missita. SUPERVISOR WALTER-Stated that first order of business this evening is a Public Hearing relative to a Subdivision Amendment on which we have had two Public Hearings and the legalities are that we must publish in the newspaper the amendments as they have been approved and our local newspaper dropped the wording. DARLEEN DOUGHER-Town Clerk - read wording...Article III, Section 4, Number 7... Sketch Drainage Plan as prepared by a licensed professional engineer. SUPERVISOR WALTER-Noted that this appears on the Sketch Plan for Major Subdivisions.. Asked for input from the public? MR. STEVES-Land Surveyor- I believe it was two months ago when we talked about this, but I did not have in my possession at the time, a court action that took place between the New York State Association of Professional Engineers and/or Surveyors and the Department of Health. The stipulation of that settlement is in my hand and I would like to present it to the Board. SUPERVISOR WALTER-Referred to Section two, special exemption under 7208 Education Law, ...may design roads, drainage, water supply, sanitary sewage facilities of a minor nature, is that correct? MR. STEVES-The term of a minor nature in connection with subdivision and inspection thereof shall be interpreted to mean that the Land Surveyor who has this exception may perform engineering designs and services in connection with roads, drainage or water supply, sanitary sewer facilities, for such subdivisions...except they may not design sewer disposal treatment plants or pump stations. COUNCILMAN BORGOS-Noted that a Major Subdivision was five lots or more...we had a problem with a licensed Landscape Architect and we raised the number for that particular case from five to twenty, and wondered if that might be a good resolution at this particular problem. We talk major and minor and that term is open for interpretation except in the Town of Queensbury when five lots or more become major. Wondered if some kind of compromise could be struck? I SUPERVISOR WALTER-During one of the first hearings, I did compromise, as an individual on the Board. We are considering now what is a minor subdivision and a major subdivision with the law and in the Town of Queensbury we have made a definition of minor and major. A Minor subdivision is less than five lots, a major subdivision is five or more and as the town becomes more densely populated and our subdivisions are backing up one on another that a five lot subdivision on the side of a mountain or one that is squeezed in between two existing subdivisions is extremely critical. I think we need sophistication of technical knowledge that only a licensed professional engineer at this point would be able to provide. COUNCILMAN MONTESI-From my experience on the Planning Board for eight years, I would say the major bulk of problems specifically drainage have been with subdivision that have been not of a minor nature under five but up twenty. In some cases some of the smaller subdivisions have been problem areas for drainage, because some of the developers are using land that is not as valuable. They can get into that business for a few bucks less but the terrain is harder to work with, I think that is one of the things to consider. We have deemed that five lots or %.10 6 less to be a minor subdivision. The question Mr. Steves is raising is...are we in fact tampering with the State law and defer to Counsel. TOWN COUNSEL-I haven't had a chance to thoroughly review what is in front of me but clearly the Town of Queensbury wasn't a party to this stipulation and I am not sure how binding it would be to not be a party to it. However the real basis and what gives the Board the authority to proceed in this matter is, I believe, is a local legislative determination to make as to whether or not something is of a minor or a major matter and I don't believe it is being superseded by the State determination which says a certain engineering service may be performed by a licensed Land Surveyor with a statutory exemption when such services are of a minor nature. COUNCILMAN BORGOS-I think perhaps when we had our negotiations, resulting in these numbers at least, I was confused at that point when I thought we had agreed to take that out and then it reappeared. I think the whole thing may be of some question because we are dealing with relatively few people; four or five who have the exemption and I have talked with a couple and they have indicated to me that they have always had a licensed engineer when there was any question whatever. I think because of so few people involved it won't do any harm to the Town, because at some point in the very near future, it will go away completely because people who did get the exemption will probably be retiring. I just hate to see us step in and muddy the waters as far as the State is concerned. COUNCILMAN KUROSAKA-According to the State it is not a subdivision if it isn't five lots. MR. STEVES-Noted that it took over two years of negotiations between the Association and the Health Department to reach this stipulation. Referred to Item II-terms of a minor nature in connection with subdivisions shall be interpreted to mean that the Land Surveyors who have this exemption may perform engineering services in connection with roads, drainage, water supply and sanitary sewage facilities. Now they do not repeat that word drainage again. SUPERVISOR WALTER-Asked Mr. Steves what his education was? MR. STEVES-My licensed should be presumptuous evidence to appear before this Board in the manner that gives me the competency to practice my profession. I have a high school education, a few years up to ACC, and I have thirty years of practice, I think that gives me the education I need. I have not used my exemption in Queensbury, or do I intend to use my exemption in Queensbury but I feel it is tampering with the Education Law. SUPERVISOR WALTER-Asked for further comments, hearing none the Public Hearing was declared closed. 8:54 P.M. OPEN FORUM FIRE MARSHAL-Town of Queensbury, requested at a previous meeting a resolution regarding refuse, an amendment to Ordinance #19. SUPERVISOR WALTER-Noted that when this was presented at the last meeting the Board needed to have some language from our Attorney to add to the sections of that or a new ordinance and he has reviewed it and determined that adding to two of the sections, one and two and a new section completely would take care of the problem. OPEN FORUM CLOSED RESOLUTIONS RESOLUTION TO APPROVE MINUTES RESOLUTION NO: 298-Introduced by Mr. Stephen Borgos who moved for its adoption, seconded by Mr. George Kurosaka. RESOLVED, that the Town Board minutes of October 28th and November 6th be and hereby are approved. Duly adopted by the following vote. Ayes: Mr. Kurosaka, Mr. Borgos, Mr. Alontesi, Mrs. Monahan, Mrs. Walter Noes: None Absent: None J� RESOLUTION TO ACCEPT DEED TO TOWN OF QUEENSBURY FOR PREMISES FOR NEW TOWN HIGHWAYS TO BE KNOW AS OLD MILL LANE AND NORTH COURT RESOLUTION NO.299,Introduced by Mr. Ronald Montesi who moved for its adoption seconded by Mr. Stephen Borgos. WHEREAS, Masullo Brothers Builders, Inc., has executed and offered a deed for town roadways to be known as Old Mill Lane and North Court, and an easement agreement with the adjoining land owner for a temporary turnaround area, which are more particularly described in Schedule "A" and 'B" annexed hereto and made a part hereof, and WHEREAS, Paul H. Naylor, Superintendent of Highways of the Town of Queensbury, has advised that he has made the necessary inspection of the right of way clearing, sub-base preparation, --' drainage implementation, and surface treatment and finds that such work has been performed in accordance with the standards and requirements of the Town of Queensbury and he recommends that this Board accept this land for highway purposes into the Town Highway System, and WHEREAS, Thomas K. Flaherty, Superintendent of Water of the Town of Queensbury, has advised that he has made the necessary inspection of Water Line Installation in the proposed highways which are located within the geographical boundaries of the Queensbury Consolidated Water District and finds that said installation has been made in accordance with the standards and requirements of the Town of Queensbury and that he recommends that this Board accept this land insofar as the water installation is concerned, and WHEREAS, the form of the deed and easement agreement have been approved by Wilson S. Mathias, Esq., Counsel to the Board, NOW,THEREFORE, BE IT RESOLVED, that the aforementioned deed and easement agreement be and the same are hereby accepted and approved and that the Town Clerk be hereby authorized and directed to cause said deed and easement agreement to be recorded in the Warren County Clerk's Office after which said deed shall be properly filed and maintained in the Office of the Town Clerk of the Town of Queensbury, and be it further RESOLVED, that the new roads be hereby added to the official inventory of Town Highways, to be described as follows: Road No., 425 Description: North/South Name: Old Mill Lane Feet: 880' Road No. 426 Description: East/West Name: North Court Feet: 575' Duly adopted by this 25th day of November, 1986 by the following vote: Ayes: Mr. Kurosaka, Mr. Borgos, Mr. Montesi, Mrs. Monahan, Mrs. Walter Noes: None Abent: None (Schedule-A& B on file) DISCUSSION-was held regarding the naming the new roads. RESOLUTION APPOINTING BOND COUNSEL RESOLUTION NO. 300,Introduced by Mrs. Betty Monahan who moved for its adoption, seconded by Mr. Stephen Borgos. WHEREAS, the Chief Fiscal Officer and the Town Board have determined the need for the issuance of serial bonds for the financing of the Quaker Road Sewer District and other special districts within the Town of Queensbury, and WHEREAS, the Town Board of the Town of Queensbury hereby appoints the law firm of Hinman, Straub, Pigors & Manning , 90 State Street, Albany, New York, as Bond Counsel to the Town of Queensbury for the purpose of preparing all resolutions and documents as necessary and appropriate for the issuance and sale of serial bonds hereafter issued by the Town of Queensbury and said law firm is further engaged to provide an expert legal opinion concerning the validity of the bonds and obligations to be issued by the Town of Rueensbury. Duly adopted by the following vote. Ayes: Mr. Kurosaka, Mr. Borgos, Mr. Montesi, Mrs. Monahan, Mrs. Walter Noes: None Absent: None RESOLUTION TO AMEND RUEENSBURY SUBDMSION REGULATIONS RESOLUTION NO.301, Introduced by Mrs. Betty Monahan who moved for its adoption seconded by Mrs. Frances Walter. WHEREAS, the Rueensbury Town Board requested an amendment to the Rueensbury Subdivision Regulations, regarding the language, and WHEREAS, the Rueensbury Town Board set a public hearing on November 25, 1986 at 7:30 P.M. on the proposed amendment to the Rueensbury Subdivision Regulations, and WHEREAS, the Public Hearing was held at the specified time and place and all interested parties were heard on the proposed amendment to the Rueensbury Subdivision Regulations, NOW, THEREFORE BE IT RESOLVED, that the following amendment be added to the Rueensbury Subdivision Regulations: ARTICLE III. PROCEDURES FOR FILING AND REVIEW OF SUBDIVISION APPLICATIONS SECTION 4 Sketch Plan for Major Subdivision: A. (ADD) 7. Sketch Drainage Plan. (Prepared by Licensed Professional Engineer). Duly adopted by the following vote: i Ayes: Mrs. Montesi, Mrs. Monahan, Mrs. Walter Noes: Mr. Kurosaka, Mr. Borgos Absent: None DISCUSSION: COUNCILMAN MONTESI-Asked Mr. Borgos if in his discussion with some of the fellows involved with this, regarding a minor subdivision did you come up with a number that is more acceptable to them other than five, or is minor not really the qualification but minor meaning minor work? COUNCILMAN BORGOS-We didn't discuss any numbers at all. It is just the interpretation of the concept relatively minor verses relatively major. COUNCILMAN MONTESI-When you say five, ten, twenty that can still be construed in essence that it is tampering. COUNCILMAN MONAHAN- Major and Miner are already defined in our regulations. COUNCILMAN BORGOS-Stated that his only thought was raising it to twenty as we did raise it to twenty with the Landscape Architect and it seemed agreeable and I think it might be a step to satisfying the people who are involved. SUPERVISOR WALTER-In the Town of Rueensbury and we have a different Sanitary Ordinance than the State of New York has, it is a whole lot sternner, harsher and stricter and so far we have done just fine with the law. I think that is our 'gative and our obligation to protect the health and welfare of the people. COUNCILMAN KUROSAKA-You are saying any subdivision is a major subdivision and under five is not a subdivision. SUPERVISOR WALTER-It is in the Town of Rueensbury. It has always been part of the review process. Drainage has always been a problem in the Town, when you look at the licensed Land Surveyor you are looking at twenty lots. Basically what those people are trying to do is to provide design of roads, design of a subdivision where perhaps with five lots you don't need a Landscape Architect, but with five lots on the side of a mountain, you need someone who is a licensed professional in that field who will be able to handle it. COUNCILMAN MONAHAN-Noted that on Haviland Road there are those kinds of problems, with the rocky soil, and fill has been brought in and this land should not even be developed. SUPERVISOR WALTER-I would like to be safe than sorry...I really thought we had an agreement and that we were merely taking it to Public Hearing to satisfy a legal requirement. COUNCILMAN BORGOS-I think there has been a misunderstanding as far as the change from minor to major. -` SUPERVISOR WALTER-Had I known there was a problem with #7 I would not have agreed to do the introduction to it. COUNCILMAN MONAHAN-If I remember right that was an agreement that the Landscape Architect would go up to more lots and this one would stay as is. COUNCILMAN BORGOS-There was some confusion as to who picked up what and they agreed or did not agree. RESOLUTION TO SET PUBLIC HEARING ON ORDINANCE TO AMEND ORDINANCE NO. 19. RESOLUTION NO.302, Introduced by George Kurosaka who moved for its adoption, seconded by Stephen Borgos. WHEREAS, the Town Board has been requested by the Town of Queensbury Fire Marshal to address the hazard of unrestricted open burning of rubbish including paper products, and WHEREAS, the Town of Queensbury by Local Ordinance No. 19 has regulated the burning of garbage in an open fire, and WHEREAS, a proposed ordinance to amend Ordinance No. 19, a copy of which is hereto annexed, has been prepared and presented for consideration by the Town Board of the Town of Queensbury for the regulation of the burning of rubbish in an open fire, and WHEREAS, the proposed ordinance is worthy of consideration for legislative action , Now therefore be it RESOLVED, that a public hearing be held concerning the proposed adoption of an ordinance to amend Ordinance No. 19 regulating the burning of rubbish in an open fire, and that said public hearing be held at 7:30 P.M. in the Meeting Room of the Town of Queensbury Office Building, Bay and Haviland Roads, in the Town of Queensbury, Warren County, New York on December 9, 1986 at which all persons interested in the subject matter thereof will be heard, and it is further RESOLVED, that the Town Clerk be hereby directed and authorized to publish and provide notice of said public hearing as may be required by law. Duly adopted by the following Ayes: Mr. Kurosaka, Mr. Borgos, Mr. Montesi, Mrs. Monahan, Mrs. Walter Noes: None Absent: None (Amendment on file) TOWN CLERK-Darleen Dougher read letter regarding petition for Park on Round Pond from Town Counsel, Wilson S. Mathias...on file RE: Petition for Park on Round Pond Dear Members of the Queensbury Town Board: On October 31st and November 3rd of this year petitions were filed with the Town Clerk requesting a special election on the question of establishing a public park on Round Pond. It is my opinion that the Town may not lawfully conduct such an election. J 70 Section 81 of the Town Law establishes the mechanism for initiative and referendum on certain subjects. The use of initiative and referendum is an extremely rare occurrence under New York State Law. Only on certain limited subject matter may questions be put to the voters at the initial insistence of a small percentage of the Town's population. The question of establishing park lands does, however, fall within the subject matter of Section 81 (see § 81 (1) (d) ). A later paragraph (§ 81 (4) specifically requires that any expenditure approved through the process of initiative and referendum must not be bonded, but rather must be paid for from the tax levy for the year in which the expenditure is made. In other words, the total cost of establishing the park including land acquisition and any structural improvements would be paid from current taxes for the year when the expenses were incurred. The New York Court of Appeals In re Town of Islip 12 NY2d 321 (1963) and an Opinion of the Attorney General 1976 P. 227 extensively analyze the interplay of §81 of the Town Law and Sections 35.00 and 176.00 of the Local Finance Law. The conclusion reached is that financing under the Local Finance Law is subject to referendum, but that expenditures subject to referendum may not be placed on the ballot for a second referendum on financing by long term bonding. It is axiomatic that any referendum on a permissible subject must clearly spell out the question asked of the electorate. The instant petitions fail to meet this burden. Thp location of the land is not indentified. The petition requests not less than 50 acres. Where are those acres to be taken from? Presumably they include the eighteen acres of land and water at the site of the pavilion, but where are the remaining 32 acres to be located? The nature of the park use is not identified. Is the property to be used as passive open space, or are bathing and boating facilities contemplated? Finally, no purchase price is set forth. What does just compensation mean? It probably means one price to the owner and another to the Town. More importantly, how can the voters know how much of their taxes are to be used to finance the one-shot cost of acquisition if no dollar figure is included in the petition? Because the specific answers to those questions are not contained within the petition the Town Board may not expend public funds on a special election based on the filed petitions. Apparently, one aspect of the petition is unique. Specifically, the signatories request that the lands be acquired through negotiation or by eminent domain. Can a group compel the Town Board to hold a vote to take private property from an individual? I believe the answer is no. A Court would not uphold an election at the insistence of disgruntled petitioners to place an incinerator, public restroom, or airport on the lands of a private person who did not wish to sell his property for such use by the Town. I am not suggesting that the motives in the instant case are anything but worthy, but I do not believe that the legislature intended initiative and referendum to rise or fall based on the intent of the signatories. There is no question that the issue of Round Pond is of great interest to the public. A great deal of time and effort obviously went into the petition drive. If the Town is successful in its negotiations with the current owner, once an agreed upon price, area and use have been arrived at the Town Board could choose to place the acquisition of the land on the ballot at a special or biennial election and finance the cost over a period of less than five years. Or, in the alternative the Board could place the question of long term financing of the acquisition before the voters pursuant to the Local Finance Law. It should be noted that if the Board takes any action with respect to Round Pond it must comply with the State Environmental Quality Review Act. This means that depending upon the kind of use desired an environmental impact statement might be required. It is my belief that compliance with SERRA must occur even before the resolution stage authorizing the purchase or bonding. Compliance with Section 81 of the Town Law and the other related provisions of law affecting this issue is not easy. Unfortunately, the petitions before you do not satisfy the legal requirements for a referendum. Under a different fact pattern, however, the issue may properly be placed before the voters. Very truly yours, - /s/ Wilson S. Mathias 2 Town Counsel COUNCILMAN BORGOS-Agreed with Town Counsel, especially condemnation of property and what it means taking land from somebody else. COUNCILMAN MONTESI-Also agreed with Town Counsel and referred to purchasing property directly from the owner...we have done that and stated that he had spoken to the owners attorney 71 as a Town Board member and there is no immediate initiative on the owners part to want to sell that. Noted that a letter had been sent in August with a map designating what we as a Town Board felt were the parcels we would want to build a park on and he has not returned anything to us in terms of dollars or a yes or no. SUPERVISOR WALTER-No, he has not done that, but his attorney has spoken to our attorney and we hope to set and firm up an appointment with them sometime in December. COUNCILMAN MONTESI-On the same token he as a developer of this property has not make any initiative brought forth to our Planner or Building Department any potential developments on this. JOHN CAFFRY-Lockhart Mountain, Asked Mr. Mathias if he has any authority for his three points he says is required. Stated that he thought the petition was legal and said the Town Board should go ahead and schedule this election and follow the will of the people. TOWN COUNSEL-My opinion really sets forth the basis for its reason. I will be glad to give Mr. Caffry a copy of it. I think there is very little case law directly on point and a lot of the thinking that went into this was a review of the statute of legislative history and an attempt to determine what the legislature had in mind when it enacted this law. I don't believe that the petition sponsors were aware of the fact that an expenditure which was brought about to initiate in referendum had to made from current taxes and I don't see how you can have people voting on what is going to come out of their taxes when you don't know what the amount of it is going to be, I disagree with them. My opinion is based on what the law is. SUPERVISOR WALTER-I don't want to get into a debate on the law, the Town Board does not wish to take any action. COMMUNICATION. Ltr. on file from Queensbury Central Volunteer Fire Co, Inc. regarding changes in active membership. Application to the Town Board of Health for Variance to the Regulations of the Sanitary Sewage Disposal Ordinance from Jerome Bonnabeaux, 179 Holmsdale Ave., Albany, New York . SUPERVISOR WALTER-Noted that Mr. Lefebvre was going to speak to her about this and didn't. What we need to do is set a Public Hearing based on the regulations on the Sanitary Sewage Disposal Ordinance and make a determination as to whether there is a good reason to issue a variance from the sections of our existing ordinance. No action was taken because of lack of sufficient information. Referred to a note from the Planner asking if we would consider an amendment to the Zoning Ordinance...addition to the last paragraph. RESOLUTION TO SET PUBLIC HEARING ON PROPOSED AMENDMENT TO ZONING ORDINANCE RESOLUTION NO. 303, Introduced by Mrs. Betty Monahan who moved for its adoption, seconded by Mr. George Kurosaka. WHEREAS, the Queensbury Town Board wishes to amend the Queensbury Zoning Ordinance as recommened by Stuart Mesinger Town Planner NOW, THEREFORE BE IT RESOLVED,that a public hearing be held December 9, 1986 at 7:30 P.M. relative to an amendment to the Town of Queensbury Zoning Ordinance in the language attached hereto, at which time all.persons interested in the subject thereof will be heard, and be it further RESOLVED, that the Town Clerk be hereby directed and authorized to publish and provide notice of said public hearing as may be required by law. Duly adopted by the following vote: Ayes: Mr. Kurosaka, Mr. Borgos, Mr. Montesi, Mrs. Monahan, Mrs. Walter -- Noes: None Absent: None AMENDMENT TO ZONING ORDINANCE SECTION 5.040 APPLICATION AND FEES FOR SITE PLAN REVIEW APPROVAL. (add) In addition to the fee listed on the schedule of fees, the Planning Board may charge a fee to developers of projects requiring legal and technical review provided that the fee charged reflects the actual cost of legal and technical assistance to the Planning Board. This fee is not to exceed $1,000. without consent of the applicant. REPORTS Town Clerk and Building & Code Enforcement Report for November, 1986, on file. RESOLUTION TO APPROVE SPECIAL AUDIT OF BILLS _ } RESOLUTION NO.304 Introduced by Mr. George Kurosaka who moved for its adoption seconded by Mr. Stephen Borgos. RESOLVED, that Audit of Bills as appears on November 25, 1986, Abstract and numbered 3426-3488 and totaling $3,077.56 be and hereby approved. Duly adopted by the following vote: Ayes: Mr. Kurosaka, Mr. Borgos, Mr. Montesi, Mrs. Monahan, Mrs. Walter Noes: None Absent: None COUNCILMAN BORGOS-Stated that a meeting was held between the Highway Superintendent and representatives from Luzerne Mountain Area and everybody agreed that an attempt would be made to find a legal way to reopen that road legally. TOWN BOARD RECESSED. 15 MINUTES TOWN BOARD REOPENED.. RESOLUTION TO SET PUBLIC HEARING ON PROPOSED AMENDMENT TO THE QUEENSBURY ZONING ORDINANCE, ARTICLE 15, PLANNED UNIT DEVELOPMENT (PUD) RESOLUTION NO.305, Introduced by Mr. Stephen Borgos who moved for its adoption, seconded by Mrs. Betty Monahan. —' WHEREAS, the language has been changed by the Town Counsel regarding ARTICLE 15 OF THE ZONING ORDINANCE, and WHEREAS, the Town Board has received from the Town Counsel in writing the purposed change in the language in Article 15 of the Planned Unit Development Provisions (PUD) and wishes to hold a public hearing on such changes. NOW, THEREFORE BE 3T, RESOLVED, that pursuant to the provisions of the above mentioned ordinance, the Town Board shall conduc-t.apublic hearing on December 9, 1986 at 7:30 P.M. at the Queensbury Town Office Building, Bay at Haviland Roads, Queesnbury, New York to consider an amendment to Article 15 of the Rueensbury Zoning Ordinance and that the Town Clerk is hereby authorized and directed to give proper notice of said public hearing. Duly adopted by the following vote: Ayes: Mr. Kurosaka, Mr. Borgos, Mr. Montesi, Mrs. Monahan, Mrs. Walter Noes: None Absent: None (Copies of the proposed amendment are available in the Office of the Town Clerk's Office.) RESOLUTION CALLING FOR EXECUTIVE SESSION RESOLUTION NO. 306, Introduced by Mr. Stephen Borgos who moved for its adoption, seconded by Mr. George Kurosaka. RESOLVED, that the Town Board hereby moves into executive session to discuss Town Litigations. � 7,3 Duly adopted by the following vote: Ayes: Mr., Kurosaka, Mr. Borgos, Mr. Montesi, Mrs. Monahan, Mrs. Walter Noes: None ON MOTION THE MEETING WAS ADJOURNED RESPECTFULLY SUBMITTED DARLEEN DOUGHER, TOWN CLERK e