TOWN OF ESOPUS
PLANNING BOARD MEETING
NOVEMBER 14, 2007
BOARD MEMBERS PRESENT: Roxanne Pecora, Chairperson
BOARD MEMBERS EXCUSED: Charles Snyder
ALSO PRESENT: Myles Putman, M.L. Putman Consulting
Peter C. Graham, Esq., Planning Board Attorney
Peter L. Lilholt, Jr., PE, CPESC, Clough Harbour & Assoc.
Dennis Doyle, Director, Ulster County Planning Board
Tim Keefe, Town Building Inspector
Chairperson Roxanne Pecora called the meeting of the Town of Esopus Planning Board to order at 7:05 p.m. beginning with the Pledge of Allegiance to the Flag. Roxanne then advised the public of the building’s fire exits and roll call was taken.
Board asked if there were any changes or corrections to the Minutes of October 17, 2007. No changes or corrections noted.
FRED MADE A MOTION TO APPROVE THE MINUTES OF OCTOBER 17, 2007 SECONDED BY DENNIS. ALL MEMBERS WERE IN FAVOR.
Board asked if there were any changes or corrections to the Minutes of October 25, 2007. No changes or corrections noted.
FRED MADE A MOTION TO APPROVE THE MINUTES OF OCTOBER 25, 2007, SECONDED BY DENNIS. ALL MEMBERS WERE IN FAVOR.
Myles Putman (M.L. Putman Consulting October, 2007)………...…………$2,000.00
Clough Harbour (Rondout Hills)…..………………………………………...$1,830.00
Clough Harbour (General – Re: Stormwater)...……………………………...$3,345.17
Peter C. Graham, Esq. (Planning Board General)……………………..…….$ 130.00
Peter C. Graham, Esq. (Somerset)…………..…………………………….…$ 325.00
Peter C. Graham, Esq. (Birchez)……………..………………………………$ 65.00
April Oneto (Planning Board Secretarial Services)...…………………..…..44 ½ hours
FRED MADE A MOTION TO APPROVE THE VOUCHERS AS READ, SECONDED BY DENNIS. ALL MEMBERS WERE IN FAVOR.
CITIVISION: Case #2007-13 – Site Plan Amendment – 126 Carney Road, Rifton
Chairperson Pecora read the Public Hearing Notice placed in the Daily Freeman and copy was placed in the record.
DENNIS MADE A MOTION TO OPEN THE PUBLIC HEARING FOR CITIVISION, SECONDED BY MIKE. ALL MEMBERS WERE IN FAVOR. MOTION CARRIED.
Roxanne asked if there were any members of the audience present to address this application. She asked that they give their name and address.
Iza Trapani-Hare – 130 Carney Road – Mrs. Hare read a short letter regarding concerns of hers and surrounding property owners. Copy placed in file. Neighbors are concerned that Citivision is in front of this Board for a Site Plan Review of a project that was started without following the proper procedure. They have received approvals from the town in the past for projects after-the-fact and it is the opinion of the neighbors that they are being given the message that they do not need to follow procedure. They feel that any hardships to the applicant have been self-created. They feel that it would be fair to deny the application and have Citivision restore the land to its original topography and vegetation. They don’t believe that the Board will make this decision, therefore, they ask that the Board include a stipulation stating that the next time Citivision appears before this Board to seek approval for project started and/or completed without following proper Town procedure the application will be denied. Citivision will have to restore the project to its original condition.
Rob Hare – 130 Carney Road - He supports the letter as read. He feels that we are running into numerous situations where applicants come before the boards with already built structures asking for variances or site plan approval. He feels that we are getting to a point where if we do not start denying these applications we are going to create a history that will allow future property owners to simply walk over our Zoning Code. At some point we have to stand up and say enough and the sooner we do it the better for everybody.
No one else wished to speak on this application.
Joseph Pisani, attorney for Citivision, wanted everyone to know that they received a copy of the engineering report and Mr. Meddenbach, Citivision Engineer, contacted the Planning Board Engineer and is meeting with him on Tuesday morning at the site to discuss his comments. Every effort will be made by their engineer to comply with whatever requests or recommendations the board may have.
Roxanne stated that under the circumstances she recommends that the Board adjourn this Public Hearing until next month to see where we are next month from an engineering perspective.
DENNIS MADE A MOTION TO RECONVENE THIS PUBLIC HEARING ON DECEMBER 12, 2007 AT 7:10 PM, SECONDED BY FRED.
Dennis asked Mr. Pisani if this project was started without an application before the Planning Board. Mr. Pisani stated that this is a combined application to site develop for the Multipurpose Building which was previously approved by the Planning Board but the site development had not been approved. Applicant cleared a certain portion of the land thinking that they had a right to do so. He stated at that time there was no attempt to put a soccer field down there. After the land was cleared, it was intended to come in and make an application for a soccer field on that site. The mistake was not to come down and get permission to take trees down and clear the land. Had it been the clearance of under one acre it would have been perfectly legal and proper. Unfortunately, it was over one acre and that is where the mistake was. It was not an intention on the part of Citivision to sneak something by the Planning Board but just a mistake on their part without getting approval from the DEC and without the Planning Board approval. Mr. Pisani stated that the engineer was immediately hired and they made contact with the DEC and also they combined the application for the soccer field along with the site development for the multipurpose building. He further stated that nothing was done with regard to the multipurpose building improperly.
Roxanne stated that we have a motion and a second to adjourn the Public Hearing to December 12, 2007 at 7:10 p.m.
Ms. Hare asked Mr. Pisani if the same mistake was made when Citivision put in apartments without a building permit or when they continue to violate a noise stipulation. Mr. Pisani stated that these allegations are not true. Roxanne stated that the Planning Board can not deal with this. These are things that need to be dealt with by the Building Inspector. Roxanne stated that the noise restriction was put on them but we are not an enforcement board. They have to take the complaint to the Building Inspector who is also the Code Enforcement Officer. Mr. Pisani stated that there is a record of complaints but there is no record of violations.
DENNIS RESTATED HIS MOTION TO RECONVENE PUBLIC HEARING FOR DECEMBER 12, 2007 AT 7:10 PM ,SECONDED BY FRED. ALL MEMBERS WERE IN FAVOR. MOTION PASSED 4-0. VOTE WAS AS FOLLOWS:
PORT: Case #2005-23 – Minor 2 Lot Subdivision – 85 Soper Road, West
Esopus; SBL: 71.001-4-52.11
Chairperson Pecora read the Public Hearing Notice placed in the Daily Freeman, copy placed in file.
DENNIS MADE A MOTION TO OPEN THE PUBLIC HEARING FOR PORT, CASE #2005-23, SECONDED BY MIKE. ALL MEMBERS WERE IN FAVOR. MOTION CARRIED.
Chairperson Pecora asked if there was anyone in the audience who wished to speak on this application. No one present to speak.
MIKE MADE A MOTION TO CLOSE THE PUBLIC HEARING ON PORT, CASE #2005-23, SECONDED BY DENNIS. ALL MEMBERS WERE IN FAVOR. MOTION CARRIED.
PORT: Case #2005-23 – Minor 2 Lot Subdivsion – 85 Soper Road, West
Esopus; SBL: 71.001-4-52.11
Jacqueline and Randy Port present. No comments from the Board on this application.
FRED MADE A MOTION TO DECLARE A NEGATIVE DECLARATION PURSUANT TO SEQR ON PORT, CASE #2005-23, AND GRANT FINAL PLAT APPROVAL. MOTION SECONDED BY DENNIS. ALL MEMBERS WERE IN FAVOR. MOTION CARRIED.
KALMUS: Case #2007-17 – Conditional Use Permit – 68 Suominens Lane, Rifton;
Applicant, Leslie Kalmus, present. Applicant received ZBA variance on 10/16/07 to Section 123.13 D1 allowing an accessory apartment and Section 123.13 D3 allowing apartment to have maximum square footage of 735 sq. ft. Stipulation was made that if this property was ever to be subdivided both buildings must remain on one lot and that the lot shall be no smaller than 3 acres in area.
Roxanne informed Mr. Kalmus that the stipulation would have to be made a note on the map. Myles asked if the Board was satisfied with the map as presented. Myles asked if the Board wants to see the septic on site and he stated that we certainly want to see the required parking that the code requires.
Dennis stated that he want to see the septic. Mr. Kalmus feels that the building has a grandfathered in septic system. He stated they bought the property the way that it is and they already have a C.O (Certificate of Occupancy). Further discussion took place regarding the septic system. Applicant received a violation on the building and the violation states that the upstairs living space has recently been utilized as a separate living space in violation of the Certificate of Occupancy. This space was originally for recreational use not living space. Mr. Kalmus stated that they are living while their other house is built. Roxanne stated that the C.O. was issued for occasional family use for recreation. Since the Building Inspector is expected to attend the meeting this evening this application was put on the side until his arrival.
PORT EWEN HOUSING (“THE MEADOWS”): Case #2006-10 – Major sub-
Division – 231 ½ Salem St.; Park La.; Eugene St; Port Ewen –
Andrew Featherston, engineer and Stanley Schutsman, attorney were present representing the applicant.
Roxanne stated that the Board received a letter from Don Kiernan, Port Ewen Water/Sewer Department, dated 10/31/07 and he is referring to plans dated 6/14/07 revision 9/13/07. Letter read and copy placed in the file. Clough Harbour Engineering Report submitted dated 11/7/07, copy placed in file.
With regard to the Engineering Review from Clough Harbour Mr. Featherston stated that he did not take exception to any of the comments in the review. He has no real issue with any of them in particular and he is willing to sit down with Pete Lilholt, Clough Harbour and review the concerns. Pete Lilholt stated that he thinks that the plans were very well organized and done. There are only a handful of major things. He is sure they can work through the concerns.
Mr. Featherston stated they modified lot #17 and lot #23; the ones that had the walls at the end of the hammerhead and front yard. He handed out a couple of sketches to the Board. He also handed out a conceptual plan that was not fully engineered. He stated that only lot #17 required a very slight wall at the garage. Mr. Featherston stated that they could incorporate that into the plans and incorporate the modifications and additions that needed to be put on the plans from the engineering comments and comments from the Water/Sewer Superintendent.
Fred stated that he thinks this is a much better plan. Pete Lilholt stated that in the alternative plan he would like to see some additional detail with maximum grades, stormwater management areas. Mr. Featherston refreshed everyone’s memory stating that they did an alternative plan which was a modification of the sketch. The modification was that all of the homes would access the interior roads. They only brought it to a conceptual level. They did not fully engineer that plan. Now the Planning Board Engineer is requesting that this be done. Mr. Featherston stated that he would have to take this back to his client. Mr. Featherston stated that the client does not wish to pursue that and the client did receive a Sketch Plan Approval on the other set. He would have to take this request back to the client.
Mr. Schutzman stated that he thinks we are at the point where they would like to see this application scheduled for a Public Hearing. He feels that most of the issues are technical. There were a couple of recommendations that they discussed with the Board when the Board asked about a Conservation Easement which we have talked about. Substituting a deeded covenant restriction to protect and give comfort to what the Board was concerned about. They have solicited comments from everybody and at this state they would like to solicit the publics’ comments. Mr. Featherston stated that there is something that the public may bring out that would spur a comment from this Board and they would like to make one set of revisions incorporating the technical comments, Water/Sewer Department, Highway Department and get everybody on one page including public comments. Roxanne reminded them that they still have to go to the Fire Department and the Health Department.
Pete stated that aside from stormwater detail he does not see any major issues. Mr. Featherston stated that they did not substantially change the plans. Roxanne asked Pete if he felt that the issues could be addressed within the month. Mr. Featherston asked if they are looking to have full response to all the comments prior to the Public Hearing. Board stated that this is their intention. Mr. Featherston felt that he would much rather have the public comment on the plans and incorporate those comments at the close of the Public Hearing for Final Approval. Roxanne stated if we did anything we would adjourn the Public Hearing until the following month. We would not close it. The applicants stated that they would prefer to handle it that way so that we can start to hear from the public at this point.
FRED MADE A MOTION TO SCHEDULE A PUBLIC HEARING FOR PORT EWEN HOUSING, CASE #2006-10, FOR DECEMBER 12, 2007 AT 7:20 PM SUBJECT TO SUBMISSION OF NEW SET OF PLANS SHOWING CHANGES TO LOT #17 AND #23, SECONDED BY DENNIS. ALL MEMBERS WERE IN FAVOR. MOTION PASSED 4-0. VOTE WAS AS FOLLOWS:
KALMUS: Case #2007-17 – Conditional Use Permit – Accessory Apartment
Tim Keefe, Building Inspector, asked by Planning Board if he knew anything about the septic system for this application. Tim went to check his records. Mike asked Mr. Kalmus when he purchased this apartment. Mr. Kalmus stated that he purchased the property in 2001. Mike asked if there would not have been a title search to see if there was a C.O. for the apartment. Peter Graham stated that they would have accepted a letter that it predated. It is not a hard and fast rule and it would depend on whether there was a lender and whether the bank wanted a C.O. Mr. Kalmus stated that there are ruins there and he was told that there was something there and whatever is there now was grandfathered in.
Tim did not find anything in his files. There was a map that shows ruins on the property but nothing regarding the septic system. Dennis stated that the applicant should contact the Health Department and get a letter from them showing what they want or don’t want. Mr. Kalmus also needs to show the parking on the site.
Applicant was also informed that he will need a Public Hearing. Mr. Hare, ZBA, informed this Board that they did have a Public Hearing for this application and nobody showed. He wanted the Board to be clear that this house is approximately 400’ off of the end of Suominen Lane and he owns all the way around it. Dennis asked if this Board had the ability to waive the Public Hearing if the applicant requested. He was told that according to our Code we can not waive the Public Hearing. And the ZBA did not give them any procedural waivers.
DENNIS MADE A MOTION TO SCHEDULE A PUBLIC HEARING FOR KALMUS, CASE #2007-17 FOR DECEMBER 12, 2007 AT 7:30 PM, SECONDED BY FRED. ALL MEMBERS WERE IN FAVOR. MOTION PASSED 4-0. VOTE WAS AS FOLLOWS:
Tim Keefe, Building Inspector joined the meeting.
BIRCHEZ “THE BIRCHES AT ESOPUS SENIOR APARTMENTS”: Case #2006-
07 – 15-51 Sorbello Lane, Port Ewen; SBL: 56.076-2-5
Steve Fell, Birchez, James Bruno, Birchez, Robert Hagopian, engineer, Stephen Hagopian, engineer, Joseph Boris, Birchez, and Robin Awand, Birchez present representing this application.
Roxanne informed the Board that there have been numerous conversations since last Thursday when we had a pre-submission type of meeting regarding this application. Birchez received notification for their funding and what is required for them to obtain that funding for the Senior Housing without the Planning Board being completely through the process. Since that time we have spoken with Peter Lilholt, engineer, Dennis Doyle, Ulster County Planning Board Director, Peter C. Graham, Planning Board Attorney and Tim Keefe, Building Inspector. Roxanne has spoken a number of times with Steve Fell, Birchez Chief Financial Officer.
Roxanne asked Steve Fell to inform everyone where we are at this point and what we are attempting to accomplish. Steve stated that at the Planning Board’s request he is handing in an attorney’s letter confirming the deadlines that they have been talking about are real, set and unable to be changed. He stated that they are building part of this project with a Federal Low Income Tax Credit and those credits expire on December 31, 2007 by act of the Internal Revenue Code. Unfortunately, although they have asked many times, they are not able to get an extension. Mr. Fell stated that if they do not close by that date and sell the bonds that the Housing Finance Agency will float for this project to give them the mortgage they will be unable to fund the project. They will own the land and they will have no project. Whether they can get future tax credits is unknown at this time. They are not able to convert it to next year’s tax credits because of the Internal Revenue Code.
Roxanne stated that there are some ways and alternatives to achieving the project without losing the funding. She spoke with the Saugerties Planning Board Chairperson and the process by which they did it was to issue a Building Permit that is restricted that lists all of the remaining Planning Board Items that need to be completed and this is done in the form of a Letter of Intent that Peter C. Graham, Planning Board Attorney would put together.
Roxanne asked Dennis Doyle, Director Ulster County Planning Board, to explain to the Board how we do this and where we are. Dennis stated that it is not unusual for Planning Boards to be asked to do unusual things and it usually happens on the basis of some deadline imposed by another agency. Dennis stated that in light of what seems to be a very difficult deadline for this project with respect to its funding we put our heads together to see what could make the applicant whole with respect to funding but more importantly could insure that the Town was very well protected and indeed better protected as it relates to the decision to let this applicant move ahead. This involved a number of different players. It involved the Ulster Co. Planning Board in its jurisdiction with respect to any site plan amendments. It involved the existing approvals that were out there. They took a look at this with Myles Putman’s assistance and Roxanne’s assistance and it is their understanding that what currently exists for this applicant is a Conditional Approval with respect to the Site Plan for the Senior Project and Preliminary Plat Approval with respect to the subdivision drawings.
Dennis stated what they are suggesting when they look at the conditions of the site plan with respect to clearing and issuance of a NOI (Notice of Intent). The project has been reviewed with respect to site plans with respect to the County Planning Boards 239 Review under General Municipal Law. The comments that came back from the County Planning Board were non-binding in nature. The changes seem to be essentially related to a condition on the Conditional Approval which essentially required an easement be found for the drainage associated with the stormwater. This necessitated discussion with the County Highway Department with respect to the size of pipes under the road as well as the neighbors and other property owners with respect to the easement. This essentially caused the applicants to go back and decide to handle significant amounts of stormwater on site so that there was effectively no change to the underlying drainage across the county road which would relieve them of easement responsibilities and tearing up the county road responsibilities and others. They gave this design solution to a stormwater engineer to work out. Mr. Fell stated that initially this was the Planning Board’s suggestion. Dennis stated that this necessitated where we are today with an amended stormwater plan. Dennis stated that from looking at it briefly this amends the site plan conditions that were approved but does not appear to amend the site plan with the exception of the stormwater system itself. There are some changes associated with the county road and that was necessitated by the Highway Permit issued by the County Highway Department and this permit has been issued and there are conditions on that permit. Dennis stated that it is his understanding that the Board has issued their findings with regard to SEQRA so there is a negative declaration out there. Roxanne stated that this is correct. Dennis stated that as a way to move forward with this project they are suggesting a consideration that this applicant be allowed to pull a limited Building Permit associated only with the site plan for the senior apartments and that this permit would essentially allow clearing and grading which in their opinion would allow them to secure their funding. Mr. Fell stated that they are 98% on securing this. What would remain by Letter of Intent is the remainder of approvals associated with the remainder of the project. That being essentially any changes that would need to be made to the subdivision to accommodate the stormwater plan and any other conditions that this Board would want to have with respect to ascertaining that the environmental work that was done remains intact or that the Board itself would issue a new determination on that basis. In short, the preliminary plat that is out there remains preliminary, it is not approved.
There is some jurisdictional questions as to whether or not the County Planning Board needs to see this again. He thinks it is prudent that the Board see it. He is also concerned that the Board’s jurisdiction does not have to be seen as it relates to a limited Building Permit which is the exact same site plan that was the Board’s original discussion until all the stormwater work is done and completed to the Town’s satisfaction. The Board would not have to see it again. This avoids the risk of the County Planning Board needing to call a special meeting in order to review this application should jurisdiction be established now. If they need to call a special meeting, they may not have a quorum and if they do not have a quorum they have 30 days in which to act. It would be his opinion that absent a quorum, the Town of Esopus Planning Board could not act until such time as the 30 days are run or from the time they receive an application. The other issue is that the Ulster County Planning Board may put binding recommendations on this board with respect to the stormwater plan or other changes to the site plan. They would prefer to do that or have this discussion once funding is secured. He does not believe that the Ulster County Planning Board has significant concerns with the site plan as it relates to the senior building. Since there are no changes to that he would direct this board to focus their efforts on any changes associated with the stormwater plan. What was suggested from everyone during this discussion was a limited approval that allows a Building Permit to be issued on a limited basis, does not finalize the subdivision but recognizes through a Letter of Intent that additional submittals need to be made. A couple of things are important. One is can the limited approval be built in the field and without risk? This is a discussion we had with Peter Graham whether or not they could actually begin construction and start work on a limited approval basis. The other question was with respect to Myles efforts as it relates to other agencies which may be involved one of those being the Waterfront Advisory Board and questions and comments from other agencies and could those comments be answered at a later date with limited approval. That is where we stand tonight asking the Board to consider a limited approval for funding purposes without relinquishing any control in terms of what this looks like at the end particularly as it relates to the subdivision.
Peter C. Graham stated that the question posed to him is what is the danger to the town of issuing a limited Building Permit? There is no danger because Building Permits can always be revoked and this Letter of Intent will have the limitation that the issuance of a Limited Building Permit will create no vested rights to proceed if the ultimate approvals are turned down.
Myles thinks that Dennis stated the case very well. Myles stated that he received the plans and it is something that they will have to spend some time looking at. He feels okay with the theory of a limited building permit and he would support the board if they want to pursue that and it has been looked at by Dennis Doyle and by Peter Graham. The Letter of Intent would stipulate the things that we are still going to hammer out in final agreement and this way the project does not lose its their funding.
Roxanne asked Pete Lilholt if he had any questions and he did not. She asked Tim Keefe if he had any questions and he stated that this is clear with him. Roxanne asked if the Planning Board had any questions.
Bob Hagopian stated that Dennis did mainly speak about stormwater and he wants to bring it to the board’s attention that plans were distributed yesterday or the day before and he wants to point out that the water/sewage design is different and he wanted the board to know that his involvement included changing the water system and sewage collection conveyance system. He submitted copies of the amended reports and maps. He also submitted copies of a letter from Saratoga Associates regarding visual analysis with respect to the new design.
Mike questioned what the absolute minimum the applicant needs to secure the funding. Mr. Fell stated the Building Permit is the minimum. Mike questioned if we issue a Building Permit on the Senior Housing it is almost as if we are approving the whole project because they can not do the Senior Housing without addressing the stormwater issues. Mike feels that we are backing ourselves in the corner for a future approval whether we want to or not. Mike feels that Pete Lilholt’s Review shows some pretty substantial changes.
Roxanne stated that the whole intent of doing this is to take the pressure off of the engineers. They do not have the time to do a proper job and evaluate this because of the funding schedule so the intent is to take the pressure off. The Building Permit allows the applicant to get their funding. It is not an open ended situation. It will give them several months to finish the engineering and get it back to us in a proper form so that we can proceed and approve it. Mr. Fell stated that the actual deadline for the closing of the documents is December 6, 2007. They will be putting an immense amount of pressure on the engineers regardless in order to get as much completed as possible before mid December. This is not something that they are going to drag out.
Dennis Doyle stated that he spoke to Steve Aaron’s attorney and one of the questions he asked is if we thought this would work. Dennis stated that he thinks this will work but he needs to tell his client that he is at more risk with this approval than he is with the approval that he has. Dennis stated that he says this because you have an approved site plan for the Senior Housing now that has several conditions on them. One with respect to stormwater is essentially an easement and you have a preliminary plat that has been approved for the subdivision. This takes you back because you have a Building Permit that is being issued on a limited basis with no stormwater approval at all just a concept design saying we can build this in the field and we are going to allow clearing to occur and other activities to occur on a limited Building Permit based on a Letter of Intent. You also have an amended subdivision which loses at least one more lot. You are down to three lots from five. In some instances where you are with this approval is perhaps in somewhat of a better situation with the existing one that you had. He would be concerned if he thought that the community was at risk to having to say yes down the line. He does not think this puts you in that situation.
Peter C. Graham stated that the Letter of Intent will explicitly state that in no way will the issuance of this Limited Building Permit create any vested rights to proceed any further and they are willing to accept this.
Mike stated that most of the comments at the Public Hearing were regarding visual i.e. site lines from River Road, the buffer zone, etc. In Pete Lilholt’s comments, he stated that the buffer zone is disappearing to make way for the pond. We made the preliminary plat approval based on that buffer zone being there and it is gone now. We made it based on the road coming out where it used to come out not where it is coming out now. There is a lot of fill to create turn that is going to be visible from River Road. Mike stated that if Dennis is saying that this all can change back to putting the buffer back in and back to putting the road back where it used to be so that we are getting back to what the public commented on and what the SEQRA negative declaration was based on he could understand that. This does not sound like this is what we are doing. We are putting a new plan out here and we have already made determinations based on something else.
Dennis Doyle stated that looking at this in terms of the road changes and some of the buffer issues associated to the road it looks to him like those changes were necessitated by Ulster County Public Works Department in terms of their approvals. This is where the road should come out and this is how we are going to protect sight distances and ditch lines on the road which basically required them to cut buffers down. Dennis said that when you look at the subdivision that had preliminary plat approval there has been little change with respect to the site plan which is what you are letting go forward; the senior project. There has been some changes with respect to the plat but you still have control as to how and what is approved with respect to that subdivision plat including additional landscaping, moving lots around, moving building lots around, adding buffers in, removing retaining walls, etc. He felt that they lost the ability to move the road around because this has been determined by the County Department of Public Works Department but other things to mitigate some of your concerns continue to be within your purview with this limited building permit issue.
Peter Graham stated that it is not his department to approve or disapprove the final plan. They are prepared to accept that they can not come back and do what you say by saying that you already issued the Building Permit and that means that you approve everything. Peter stated that they can correct him if he is wrong but he thinks that financing works pretty much like you are going to go buy a house. You are there and you are going to make an application to get a commitment to give you some money. They are not going to give you the money until the project gets final approval. Mr. Fell stated that this is correct and that it is a scheduled pay-out and it is over a couple of year period. Peter Graham stated that when you buy a house you get a commitment from the bank but that is just the beginning.
Mike stated that he understands what Peter Graham is saying but he feels that we are being asked to circumvent our process because of the hardship of the loan. There is going to be another hurdle for the applicant to go over for the next round of money and that is going to be another hardship.
Mr. Fell stated that there is no other hurdle. He stated that the pay-up is a schedule within the terms of the agreement that they set. It is one financing agreement and that is it. The fact that it is paid out over time is something that they negotiate with the equity lenders. This is a negotiation that he deals with and they are all different and you do not go back more than once. This is it. There is only one agreement. They are either in it or they lose it. It is not something that they set, unfortunately, it has been in law since 1986.
Mike asked Tim Keefe, Building Inspector, what the limited Building Permit sounds like. Is it just to clear trees or is it to build a building? Tim said that he will be working with Peter C. Graham to get the wording on it properly. Peter stated that it is basically just for clearing and grading and furtherance of the site plan. Tim stated that is it there will be no building. Mike stated that the minimum they need to go forward with this project is a Building Permit just to clear without even having a building on it you can get the money? Mr. Fell stated that he believes so and that this is the minimum that he needs to try to get the money.
Roxanne stated that this is very much what Saugerties did. Mike stated that the Building Permit was just to clear the land and that was enough to secure the funding. Roxanne stated that she had the same discussion with the Chairman of the Saugerties Planning Board and we are not giving them any of the rights or any of the things that we would normally do as a Planning Board. We are not going to sign prints until they are ready, until they are final. Mike asked what do you see as the process after tonight? Are we going to open SEQRA and go back to all the other agencies to submit? Are we going to open a Public Hearing again because there are substantial changes? Mike stated that Myles document brought up all of these points and he is just verbalizing what he put in writing. These are all valid concerns that we should be concerned about and he is worried about it.
Myles stated that if you take a pass on the limited building permit tonight you still have to deal with the subdivision in front of you. You as board members have to ask yourself if the revised final plat is in substantial agreement with the preliminary plat and you may very well make a finding that it is not in agreement which would open up another Public Hearing. It would give the board another opportunity to revisit SEQRA especially the site disturbance and a lot of the visuals. Myles said that is what State law says if somebody changes a final plat from preliminary the board has to look at it and if there are what the board considers to be very substantial changes you make that finding. You go to another hearing and you can reopen SEQRA. Peter Graham stated that he agrees with what Myles is saying but it is still too early to make that determination but the board collectively will make that determination and issuing this building permit does not take that away from the board.
Mike stated that we could open SEQRA again and have another Public Hearing but they already have a building permit to build this building. He was told that they would have a building permit to clear the site not build the building. Mike asked Pete Lilholt if he has ever heard of anything like this. He stated no. Mike asked what his opinion is about this. Pete Lilholt stated that he can only comment about technical details.
Mr. Fell stated that he can confirm that this is what they did in Saugerties. Mr. Bruno stated that at the time of the Saugerties project he was Vice Chairman of the Planning Board in Saugerties and he did not work with Steve Aaron. They gave them a limited building permit and you can see how the project turned out. They did everything they were supposed to do and everything went according to plan.
Mike stated that he hears what they are saying but in Saugerties they might not have had this kind of a site where you had stormwater issues, a buffer zone that disappeared. James Bruno stated that what they had was worse. Mike asked if we were going to address any engineering issues at this meeting.
Roxanne stated that they are not really ready. They are working to get ready but it is just not possible with the timeframe. They were notified three weeks ago. We met last Thursday and they have been working since last Thursday. They still have to get a lot of this done and the pressure is still on them. This is to relieve the pressure because it is detailed work and it does take time. We did go down through the prints that Delaware Engineering had because as Myles said the documentation that was presented to this board for preliminary approval should be no less than what he had then. They own the prints so the prints that were still good were identified to be included with the submission along with what Hagopian Engineering has to change.
Mike stated that he has a general question for Pete Lilholt. Based on Pete’s comments and the layout are they close to doing what they want to do as far as the size of the ponds, the road grading? Is this substantially what it is going to look like or do they have to go back to the drawing board because it does not work. Pete Lilholt stated that he did have a review letter that was just issued yesterday before he was given new documents and it was based on plans that are constantly evolving as a result of ongoing discussions. With regard to the road design we do have some comments on the horizontal geometry although whatever revisions will take place will be somewhat minor because we are fixed at the location at the senior apartments and we are fixed at the River Road location because of the County approvals so getting from Point A to Point B both horizontally and vertically is somewhat fixed. We do have some comments with regard to the horizontal and vertical geometry and he expects to work with the applicant in that regard. On the stormwater management, they do have a number of questions and comments and it is too early to say whether that will take up more room or less room. We are asking them to see if they can consolidate the multiple stormwater basins into fewer, larger basins. They had a number of comments on the stormwater design and calculations He can’t say what there will be in terms of the ultimate picture at this point.
Mr. Fell stated they are aware that things will change and they have other lots there and every time they give up a lot it is a lot of money. They started with five and now they are down to three and if it has to go to two then that is what it has to be. The senior project will not be affected.
Mike stated that the applicant said that unless they got all the lots this project would not work money-wise. Now you are saying that it does not matter. This is inconsistent with what the board was led to believe previously when we asked for revisions. That the number of lots where going to make this a go or no go. Mr. Fell stated that he can not speak for the engineer who might have told you that. He is the Chief Financial Officer of the company and he is making this representation. Mike stated that he is not positive but he believes Steve Aaron was the individual who said that. Roxanne stated that Mr. Fell is the Chief Financial Officer and he knows the numbers. He would know if it is profitable or not. Steve Aaron is the owner.
Dennis Suraci asked whether the Letter of Intent will reference the Building Permit, will the Building Permit have anything on it and can it have anything on it when you take it back for funding? Is it going to say Limited Building Permit or is it going to say Building Permit?
Peter C. Graham stated that it would have to say Limited Building Permit for clearing and grading and furtherance of the Site Plan. Dennis Suraci asked if that would have a renewal date to it or is it going to be one year? Would it be good to say in three months they renew it again so everybody knows they are moving with it and the project is going forward with the development? Peter C. Graham stated that he thinks that it should be treated like any other building permit. Roxanne stated that the typical building permit is good for one year. Dennis Suraci’s concern is that Mike might be more comfortable if they needed to renew every three, six months. Mike stated that as long as the permit is limited to the clearing and grading of land it does not matter. He is comfortable.
Roxanne stated that Peter Lilholt was kind enough to put together a list of items that still needs to be completed. We have a new letter dated 11/12/07 from Saratoga Associates regarding the visual impact. Copy placed in the file. Roxanne asked what the Board needs to do at this time. Do we need a motion for the Letter of Intent or do we need a motion that authorizes the building permit? Peter C. Graham stated that the Board should do a motion authorizing the Chairperson to sign a Letter of Intent consenting that a Limited Building Permit be issued for purposes of clearing and grading and furtherance of the site plan and then we will attach the following conditions to the site plan approval continued as the concerns with the preliminary subdivision approval and the letter should contain the limitation that the issuance of the Limited Building Permit creates no vested rights to proceed if all required approvals are not received. It should be prepared for Roxanne to sign and we can make arrangements to have it sent to everybody before Roxanne actually signs.
Dennis Doyle asked the applicant if there were any other deadlines with respect to approvals, funding, etc. that they are aware of. He stated that he heard a December 31st date and he did not know if that was significant. Mr. Fell stated that this is an Internal Revenue date that the tax credits disappear on. Dennis stated that once this deadline has passed you know of no other deadline. Mr. Fell stated that they have not given them any so as far as he knows this is it. The only other deadline he will impose will be at the time they go to final closing he will ask Roxanne if she can on behalf of the Planning Board confirm that some of these conditions have been met. Dennis asked what the anticipated final closing date is. Mr. Fell stated final closing is December 12th, final submission December 3rd with submission to HFA, according to the lawyer, December 6th signed documents. He stated that they will do everything they can to meet this list by then and if there are some that they do they would ask that the Planning Board acknowledge for meeting some of them. The first one on the list is the visual and they have already met that requirement with the letter from Saratoga Associates.
Roxanne stated that the Planning Board’s next meeting is December 12th and asked if they are anticipating another submission of prints. Mr. Fell stated that he is not sure if there will be new prints but if there is anything on this list that they manage to accomplish he would like an acknowledgement that they have been submitted just so that he can go to the closing and show that they are making progress along with the approval. Roxanne stated that in order for her to be able to do that she will need Myles and Pete Lilholt’s input. Roxanne stated that in order for her to commit on behalf of the Board the Board will need to give her permission to do that. Mike asked how any of the items on the list from Pete can be met without the Board meeting and discussing them. Mike thinks that they should be handled all together. Further discussion took place and it is felt that a lot of the items on the list can be worked on but will not be met by our next meeting. Peter Lilholt stated that if the Board was willing to do so they could simply state the fact that the Board received items that need to be reviewed. Mr. Fell stated that they are going to continue working on the items required and he would accept a list of items that have been submitted. He is not asking for approvals he is just asking for a factual list of what has been submitted to show that they are making progress.
FRED MADE A MOTION TO AUTHORIZE THE PLANNING BOARD CHAIRPERSON TO SIGN A LETTER OF INTENT FOR THE BENEFIT OF THE APPLICANT BIRCHEZ STATING THAT A LIMITED BUILDING PERMIT MAY BE ISSUED BY THE TOWN OF ESOPUS BUILDING INSPECTOR FOR THE CLEARING AND GRADING OF THE SITE AND FURTHERANCE OF THE SITE PLAN. ALL CONDITIONS OF THE SITE PLAN APPROVAL AND PRELIMINARY SUBDIVSION APPROVAL WILL REMAIN OPEN AND THE LETTER WILL CONTAIN A DISCLAIMER THAT THE ISSUANCE OF THE LIMITED BUILDING PERMIT WILL CREATE NO VESTED RIGHTS FOR THE APPLICANT TO PROCEED UNLESS ALL REQUIRED APPROVALS ARE RECEIVED, SECONDED BY DENNIS.
Mr. Hagopian wanted to know if they are working off of the old negative declaration or will this Board need to have a new one. Roxanne stated that we have to make that determination. We do not know yet. Myles stated that they are getting the Building Permit based on the pre-approved site plan and we can work with that negative declaration. Myles stated that when we start picking apart the subdivision revised plans in detail that we would consider reopening SEQRA then. Roxanne stated that the problem is with the subdivision it is not with the Senior Housing. Mike stated except the stormwater which affects both.
Mr. Hagopian questioned that the previous approval was subject to them contacting Central Hudson and what is written here is additional review and approval from Central Hudson and this is something very different. Roxanne stated that they are just to notify Central Hudson when they are doing work in that area. Mr. Hagopian stated that he notified them already so he would like that removed from the list. Fred stated that when you are going to dig on that property they will come and stake it out and then they will issue you a letter within 24 hours that they have done this.
Roxanne stated we have a motion on the floor do we have a second? Mike asked if he is to understand that we will incorporate the list that Pete Lilholt submitted in the motion. Peter C. Graham stated all conditions. He saw it today for the first time but the substance will be incorporated. Roxanne stated that when Peter Graham gets it drafted she will send it to Pete Lilholt to review.
MOTION PASSED 4-0 VOTE WAS AS FOLLOWS:
Roxanne asked Mike if he wanted this applicant to lose the funding and then this town will therefore lose the senior housing because that is what will happen if we can not get his vote tonight. Mike stated that it is 3-1. Roxanne stated that we need 4 because it is a 7 member board. Mike stated that he thinks we are setting the bar pretty low for applicants who come before us to go ahead with stripping the land and building something. Roxanne stated that this does not remove any of the Planning Board criteria that has to be met. Mike stated that he does not want the project to stop. He wants it to go forward. He was told that he just stopped it unless he turns his vote around. Mike stated that he was not aware that it had to be a 4-0 vote. Peter C. Graham stated that he knows what Mike was thinking because if it had been Robert’s Rules of Order and you had a quorum then a majority of the quorum would control but under Town Law it is a majority of the entire body so there is a 7 member body. There are vacancies but they are negative votes under any motion. So unlike Robert’s Rules of Order it requires 4 to pass it. Roxanne stated that it is either that or we reschedule this meeting for later this month. Mike asked what would happen if he abstained. He was told that it would be a negative vote.
Mike changed his vote to a yes under duress. Motion is carried.
Peter C. Graham will draft the letter of intent for the Board’s review.
Roxanne stated that Bob Hagopian gave us a print with Health Department Approval. Bob also gave us a copy of the Ulster County Department of Highway and Bridges permit dated 11/12/07. We have received letter from Saratoga Associates dated 11/12/07, a letter from the Fire Department dated 11/14/07 and a letter from Don Kiernan dated 11/14/07 and they have addressed his concerns. They have met the concerns of the Fire Department. They received a letter from Michael Nowicki, Ecological Solutions dated 11/9/07 regarding the wetlands. Copies of these items have been placed in the file.
FRED MADE A MOTION TO INCREASE THE ESCROW ACCOUNT BY $5,000, SECONDED BY DENNIS. ALL MEMERS WERE IN FAVOR. MOTION PASSED 4-0. VOTE WAS AS FOLLOWS:
Discussion took place regarding multiple ponds and Peter Lilholt’s comments requesting less ponds. Pete Lilholt stated that he feels that it would be best for the engineers on the project to meet with him to discuss some of these issues. Mr. Hagopian stated that he does not see any other way to make it work without multiple ponds and the proposal is for the town to maintain the entire stormwater system and if the town fails to accept that responsibility the applicant will have to maintain the stormwater system. Maintenance will have to go forward no matter what. He does not see any other way for the stormwater system to work and he does not see a major obstacle if the applicant maintains it or the town does. He is asking that the stormwater system be found acceptable. Following further discussion it was agreed that Mr. Hagopian needs to get together with Pete Lilholt to discuss these issues.
Pete Lilholt stated that with regard to the multiple ponds there are public storm systems that are proposed along the town road with catch basins and pipes and there are private storm systems within the parking lots of the cottage units and the apartment buildings. He does not think that it is in general good practice to have the public storm system discharge to a private site or if necessary that should be limited. If there is a problem with the town system and it is on private land it has liability issues. One pond in particular is the one behind the apartment building where you are taking road drainage through a private site to a pond and this one in particular is of concern to him. Peter stated that if you look at the other engineering plans the drainage was flowing the other way from the site into the town road system and this makes more sense to him. He would like to at least eliminate that one. He knows that they are limited on space. Mr. Hagopian stated that they are extremely limited on space and if the town is taking responsibility to maintain the whole thing or if the applicant is going to accept the responsibility this would be better protection for the town. Pete Lilholt stated that he would recommend to the town that they pass all maintenance to somebody else but still be ultimately responsible for the stormwater discharge. Discussion continued until
Mr. Fell stated that he feels that this is something that needs to be discussed among the engineers without the Board members having to be present. Roxanne stated that they need to satisfy Pete Lilholt since he is the Planning Board Engineer. Mr. Hagopian is authorized to speak to Pete Lilholt.
Board members were reminded that we still need their confirmation of their four hours of training for the year.
MIKE MADE A MOTION TO ADJOURN AT 9:30 PM, SECONDED BY DENNIS. ALL MEMBERS WERE IN FAVOR.
NEXT PLANNING BOARD MEETING: December 12, 2007
NEXT DEADLINE DATE: December 6, 2007
April OnetoPlanning Board Secretary