TOWN OF ESOUS
PLANNING BOARD MEETING
MARCH 18, 2009
BOARD MEMBERS PRESENT: Roxanne Pecora, Chairperson
GUEST: Toni Hokansen, Chair, Ulster County Planning Board
Roxanne opened the meeting at 7:05 PM explaining the purpose of this meeting and introduced Toni Hokansen, Ulster County Planning Board Chair. The purpose of this meeting is for Toni to address the Board=s concerns regarding the development of the Land Use Referral Guide and the Memorandum of Agreement (waivers) that was developed by the Ulster County Planning Board. Toni chaired the Referral Guide Committee. The Board was reminded that at the last meeting Commissioner Dennis Doyle stated that the Board could even propose a whole new version if they chose to do so.
Toni stated that from her reading of the minutes from the February 26th meeting with Commissioner Dennis Doyle the main concern is what gives the County the authority to now ask for things beyond the 500 foot limit and what gives them the authority to ask for subdivisions. Toni stated that in the way of a little history she actively campaigned against the County Charter. It is not that she thinks that the County should not have a charter but there were a lot of inconsistencies in the way that it was written and things that needed to be fixed and the amount of power given to the executive.
She strongly supported putting out a Referral Guide because she felt that they needed to give the Towns some instruction, make it clear and in writing what the changes were. She did help work on this booklet which was mostly County Planning Board Members and Robert Liebowitz and not Dennis Doyle at all. Toni met with the County Attorney and asked her to show her in the law where it says that they can do this and so she made copies of the whole Article 12 b. (Copies of Article 12 (b) were made for all Board members.)
Toni directed the Board to Section of the County Planning Board Powers and Duties B A where it states that the County Legislative Body may by resolution authorize the County Planning Board to conduct reviews of certain classes of planning and zoning actions by city, town or village within such county pursuant to Section 239 (i) and 239 (m) of this Article and to review certain subdivision plats pursuant to Section 239 (n) of this Article. The Resolution that the County Legislature adopted was both for Charter and the Legislative Code which is what changed the nature of the relationship between the Ulster County Planning Board and the Town Planning Board not any agreement that you may sign with them. The actual new legislation is what changed the relationship.
Mike stated that he understands this and he is not taking issue with the subdivisions portion of this. It makes sense for it to be a county-wide responsibility to look at subdivisions within the county. (Mike asked if Dennis Doyle ever provided the Case Law Citations. They have not yet been received.) Mike stated that Commissioner Doyle keeps stating that there is Case Law that supports these positions but we have not yet received copies as requested. Mike researched this himself and he believes that although there has been legal opinion that the County Charter is legally valid he believes that if you look at the AHome Rule Provisions@ (the separation of the powers of our Planning Board and the County Planning Board) the Charter and/or may have overstepped, over-reached and therefore to his mind case law would be significant. He can only find statute and until statute is brought up as case law then he considers it an overreach. The problem is that he believes that if we sign this agreement that we are in effect endorsing either the Charter or one or the other or both the interpretation of the Charter in a way which is counter-manded by AHome Rule@. He does not want to be in a position of doing that. He would rather wait until actual case law comes out. The reason that it is so critical to him is that Commissioner Doyle stated that they have agreed that there will be no changes to the County Charter for 5 years. Toni stated that she does not know that this is true. Mike stated that clearly if the County Charter is in violation of AHome Rule Statutes@ there will be changes before 5 years. He does not want to be in the position by signing and agreement to be doing something with paperwork to be seen to be endorsing either the Charter or the interpretation. In the past, Mike feels that we have had some disagreements with Commissioner Doyle in the way that he manipulates what Mike believes to be the truth. He has a tendency to be resistant to do what he is requesting. Mike stated that he is resistant to signing this because it can be seen as an endorsement of something which he does not believe is tenable under the State Statutes relating to Home Rule.
Roxanne stated that she did invite the County Executive to this meeting and she did speak with him at length. Roxanne stated that there is a provision for review at 5 years and it can be changed. He did say that. What we understood about the 5 year rule was not quite as it had been explained. Roxanne explained to him about how Dennis Doyle became Director, how the office was structured with a Deputy Director, what the rules of that office are supposed to be. He is well informed as to how things are supposed to be running in that office versus what is actually happening.
Toni stated that she is not at the meeting to try to talk the Board into signing the agreement. That is not her purpose of attending this meeting. She is here to provide information. Her concern is that if we do not send all of the items you may be in violation of 239 (m) and (n) and that you are risking your decisions to be vulnerable under an Article 78. Roxanne stated that if we do not sign the agreement we have to send everything.
Mike stated that until we understand the relationship between the two Boards we are willing to send everything up so that our action is not seen as an endorsement of a relationship which we do not think is what it is supposed to be. Roxanne stated that in her phone conversations with Commissioner Doyle he has stated that he would really like to see Regional Planning Boards. She knows that this is what is behind his thinking. Toni asked if there were other sections of the Charter that we are concerned about or is it only the Planning Board section. Mike stated that it is only the Planning Board section and it is his perception that Dennis Doyle does not have the personnel to make the regional planning board happen but if he gets us to agree that we can negotiate these things therefore it takes the pressure off the personnel issues until such time he can say to do the job that everybody agrees needs to be done and that in order to do the job he is supposed to be doing he will need more people.
Roxanne used the example of Stewart=s Shop. Dennis wanted to know about moving the building up front. Roxanne informed him that if we do that we can not get the exit onto East Main St. and that this is what the Planning Board wants. He then questioned why the building can=t be moved where the existing building is. He was informed that the applicant wants to keep the building open during construction. He said that we have the authority to make them do it under site plan. Roxanne told him that we are working with the applicant and that this is what the Planning Board wants. Then he questioned the one way in and one way out. Roxanne felt that this might make sense but more than once she had to tell him that this is what the Planning Board wants and that we have worked with this applicant to develop this site plan. Roxanne stated that she again went through the same questions with Rob Liebowitz prior to the meeteing and again she had to tell him that this is what the Planning Board wants. Then they stated that they were missing information which she went to the office and made copies to provide for them even though the material was hand delivered to them. At the meting, she got hit with the Zoning Board not having made a referral therefore the zoning variances were not recognized. After the meeting Dennis stated that he talked it over with Rob and they felt that our Board could go ahead and approve it. Roxanne called the Planning Board Attorney whose opinion is that we cannot do this. The only thing we can do this month is have a public hearing. We can not make a decision. Again, citing case law that can not be produced can create a problem. Statements should not be made that cannot be supported.
Mike stated that clearly Toni is in a bad position because Dennis is staff to her but they do not supervise him. How can you have staff that is then supervised by somebody who does not come to the meeting?
Toni stated that she is trying to understand the Board=s claim that the Charter is overreaching because when it comes to planning it refers to Article 12 b and it is clear that they can authorize that. Mike=s opinion is that the items that are not subdivisions and where they will be giving us advisory opinions only i.e. no area or use variances are required outside of 500 feet. Roxanne stated that Commissioner Doyle said that the Charter did two things: 1) it gave the County Planning Board subdivisions to review and 2) it extended it=s reach beyond the 500 feet. It is essentially saying that any discretionary actions within Ulster County as a whole are now referable to the Board. Outside of the 500 feet the only response that the board can give is a response of ANo County Impact@. There is not a majority plus one or super majority requirement outside the 500 feet. Mike stated the fact that if we do not sign the agreement we have to supply all of that information it implies that they have a valid interest outside of those things which we agree they have a valid interest in. He is basically saying he is supposed to look at some of the stuff in the County. We will give you an opinion on some of the stuff and the only way you can override us is with a super majority and some of the stuff we will just give you an advisory opinion but it does not require a super majority to overrule us. By referring all of those papers to him the implication is that it is a valid concern for them. In Mike=s mind, what he is basically saying is that they do not have the staff to review those right now but they still want us to know that that can change and they will be in charge of that too. He is asking for every discretionary item in the County. Mike does not believe that by aside from those two are by AHome Rule Statute@ referable to the County Board and by putting them in there he is starting the step toward a centralized planning authority and that is what he thinks is in violation of the AHome Rule Statute@.
Roxanne stated that is what we feel is going on. What was intended as a Board and as a Committee and what is being represented when Commissioner Doyle goes around and talks about it is coming out differently. Roxanne feels that it is part of his push for regional boards.
Dennis Suraci stated that his biggest concern is what is happening with Stewart=s and that we will extend the applicant=s review period and we are going to kick into another month. We are not going to be falling into sequence with the way we used to do it. They are asking for a maximum of 30 days which would kick us a month and maybe two months out and because of the workload that the County is going to be taking on and because it is new they don=t advertise it. Dennis Suraci would like to see them run it for a while, see the glitches and change what they need to change and then maybe we would consider it. Dennis Suraci stated that like what happened with the County Health Department. We had a law that we went by for Health Department Approvals for more than 5 lots and all of a sudden even though it is written in the law they now demand that we send everything to them. This again takes more time for our applications to go through. Dennis Suraci is concerned that the more the County gets involved it is going to take longer and longer and as soon as we slow construction down this town is going to come to a halt.
Roxanne stated that we now need a special resolution because of this because Comissioner Doyle told the County Health Commissioner that they needed some kind of resolution from the board dealing with SEQRA and we had to go back and do a special resolution. The County Health Department and DPW is running to the Ulster County Planning Board=s Office for guidance.
Mike stated that his responsibility as a member of this Board and to the Town is to follow the laws that support what the Town wants to do. This setting it up so that they can do this and that later on then I am going to block them every step of the way so that they can not do this. If they think that this is right and they want to do it, then we need to vote on it. Mike feels that if they put up a central planning structure for the whole county he does not think that it will get 20% of the votes. This is what we are trying to stop.
Toni stated that she thinks she understands where the concern is coming from and stated that she needs to do a little bit more research to be able to answer specifically the point that is being brought up to find the authority outside of Commissioner Doyle that allows for that to happen. She really focused on the subdivision part when she asked the County Attorney to prove it to her. Toni stated that she wants to make sure that the Board is not putting themselves at risk but if they send everything then they are not going to put themselves at risk. Toni will do the research and hopes to get back to the board within 3 weeks.
Mike stated that this would be fine because we recognize that if we do not sign the agreement then we will have to send everything up to the County and we appreciate Toni=s help with this matter.
Toni wanted the Board to know that the document was generated by the Ulster County Planning Board and not by Commissioner Doyle and a lot of the items that are on the agreement for not sending were generated by Planning Board members.
Charlie wanted to go on record stating that he thinks this is an open ended agreement and if in fact Ulster County wants to empower themselves and reduce the say in local matters he referred to Schedule B modification that says the Ulster County Planning Board shall have the right to remove or otherwise modify any or all referral requirements contained in Schedule B by providing in writing the revisions signed and dated by the Chairman of the Ulster County Planning Board to the Chairman of the municipality Planning Board and the revisions will take 10 days to take effect. This means that the Ulster County Planning Board can in effect make any changes that they want. Toni asked if it does not say on the agreement that the Board can also cancel that agreement. Charlie questioned that if the agreement can be cancelled at any time why are we even signing it? Toni stated that it allows you to stop sending those things now. Roxanne stated that either party can cancel. Mike stated that if our agreement to it recognizes the process then we are in fact recognizing the authority. Toni stated that what we might want to agree to is just the things that we can waive sending within 500 feet. Mike wants to acknowledge the fact that they do not have the right to ask for things until somebody proves that they do. Toni is talking about the things that last year they were allowed to ask for. There are some of those things that you can agree to now to not send. Mike stated that the agreement itself endorses a relationship which he does not agree to. Charlie stated that=s his concern too.
Dennis Suraci comments about it taking more time for the review process. He stated that one of the frustrations for the applicants is the length of time that the process takes and he thinks that it should go in the other direction and it should take less time. He thinks the more layers we put in there the longer the process will take. Toni stated that part of the problem is that we continue to get additional requirements put on the Planning Board to look at. Dennis Suraci questioned why the Board goes to the intensity that it does to review something like stormwater if you already have one professional involved in it. Toni stated that at the County Planning Board level we mostly just look to see that it is there. Mike stated that we have an engineering consultant and a planning consultant and we go through every application step by step.
Toni stated that the Planning Board members in the writing of this and trying to get the policy guides and the waiver agreement it was their intention to make the process smoother. Mike stated that it is his opinion that it is the interpretation of the Charter that is doing the overstepping. Toni stated that she believes that the Charter hangs its hat on Article 12 and that is what she will be researching.
Roxanne thanked Toni for her time and we look forward to hearing from her in the future.
Planning Board Meeting ended at 8:05 PM.
NEXT MONTHLY MEETING: March 26, 2009
Planning Board Secretary