TOWN OF ESOPUS
PLANNING BOARD MEETING
DECEMBER 4, 2007
BOARD MEMBERS PRESENT: Roxanne Pecora, Chairperson
BOARD MEMBER EXCUSED: Darin DeKoskie
Chairperson 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. Chairperson Pecora then advised the public of the building’s fire exits and roll call was taken.
BIRCHEZ ASSOCIATES, LLC: “THE BIRCHES AT ESOPUS” : Case #2006-
07/08 – Major Subdivision; Conditioanl Use Permit
15-51 Sorbello Lane, Port Ewen; SBL: 56.076-2-5
Chairperson Pecora stated that this is a special meeting that has been called by the Chairperson to discuss the business of Birchez Associates. The Planning Board members knew from the last meeting of November 14, 2007 the Board discussed issuing a Letter of Intent which would allow the applicant to obtain a Building Permit for clearing and disturbance only (a limited Building Permit) that would hopefully allow them along with the Letter of Intent to obtain their funding. That was done, the letter was reviewed by the Ulster County Planning Board Director, Dennis Doyle, Planning Board Attorney, Peter C. Graham, Pete Lilholt, Engineer, Clough Harbour and the Chairperson of the Town of Esopus Planning Board. When the letter was in final form it was sent to Birchez. Steve Fell, Chief Financial Officer for Birchez, took the letter forward and it was not accepted by the lenders. The Planning Board knew at the time of the meeting on November 14th that the other option was that they had to come out of a special meeting called by the Planning Board with signed prints and final approval.
Steve Fell, Birchez Chief Financial Officer, James Bruno, Birchez, Joe Boris, Birchez, Robin Awand, Birchez, Robert Hagopian, Birchez Engineer, Steve Hagopian, Birchez Engineer, and David Lenefsky, Birchez Attorney.
The applicant has been working many hours for the last three weeks many hours along with the Planning Board Engineer and the Planning Board Planner and as of yesterday they are in final agreement. There are no issues and we have resolutions prepared tonight to go forward.
Myles Putman reiterated that the Letter of Intent and the Limited Building Permit concept granted on November 14, 2007 fell through and the applicant is required to have final site plan approval and final subdivision plat approval in order to obtain a letter of credit for their funding. In anticipation of tonight’s meeting, there was an extensive discussion yesterday between the owner’s engineer, the applicant’s representatives as well as the chairperson, himself and others representing the town and the applicant to discuss some of the final issues and concerns that were raised with the site plan to try to wrap up some of the engineering concerns and the landscaping concerns that were raised. Pete Lilholt, Town Engineer, has outlined his findings and conditions for approval in correspondence dated December 3, 2007. Approvals from the project have been received from Ulster County Health Department, Ulster County Public Works, New York State DOT. Planning Board must determine if the Final Plat as submitted is in substantial agreement with the Preliminary Plat. There is no set standard or fixed quantitative standard in State Laws of the local code in making this determination. If the final is not found to be in substantial agreement with the preliminary the Planning Board then must hold a public hearing. They may also re-examine its environmental determination. An argument can be made for substantial agreement based on some of the discussion that was had yesterday and based on Myles’ discussion with the town engineer.
It is M.L. Putman’s recommendation that the Planning Board grant final plat approval and sign the maps as outlined in the draft resolution of final subdivision plat approval and that the Planning Board grant final approval of the site plan associated with the approved conditional use permit and sign the maps as outlined in the draft resolution of final subdivision plat approval. (See copy of M.L. Putman Consulting Review dated 12/4/07, copy given to applicant and copy placed in the file.)
Mr. Steve Fell, Chief Financial Officer for Birchez Associates, took this opportunity to thank everyone who was present and everyone who has anything to do with this project. He stated that he would like to thank the Planning Board and the Town Board who have given them nothing but support for this project. He thanked his personal staff and stated that they have worked very hard. He stated that they are here tonight after a rigorous meeting yesterday and additional submissions today. They have done everything that they have been asked to do and they want Senior Housing in Esopus just as much as the town does. He stated that everybody has come together. There has been a lot of money at stake and they have given up building lots, they have gone back to the engineers and they have submitted new drawings. He wanted to inform everyone present that the Planning Board has made them dot every “I” and cross every “T” at least once through the entire process and they expected nothing different. He feels that the Board should be commended for their efforts. He states that they are recommending that the Town Planning Board approve the recommended information presented by Myles Putman.
Roxanne informed Mr. Fell that Birchez will need to increase their escrow account and the Board will make a motion to do so later in the meeting.
Fred stated that it is his understanding that all of the technical issues have been resolved. Pete Lilholt stated that this is correct and after an exhaustive amount of effort on the part of a lot of people we are satisfied with the supplemental documents submitted with the conditions outlined in Myles’ recommendations.
Chuck stated that he is sure that there was a lot of work done and all of the technical aspects have been addressed but the site plan is less attractive than the one he voted no on the last time. He stated that we have completely deforested the entire slope down to River Road. There is not one inch of the site plan that does not have a retaining wall on it. He does not see the spirit of the conditional approval that we granted in an effort to actually make the site plan better. Roxanne asked Pete Lilholt to address Chuck’s questions. Chuck stated the buffer is totally gone.
Pete stated that he understands Chuck’s comments. He pointed out that the applicant was more or less required to go through this level of effort and the massive amount of grading that was required as a direct result of the County DPW comments. The previous stormwater management proposal worked under certain provisions of the stormwater regulations. They were proposing a water quality basin on the site only and based on the proximity to the Hudson River conditioned on getting the proper easements and providing an appropriate conveyance to the river they were able to do so. In this way they were able to maintain some buffer along River Road. In this case, the County came back and said absolutely not. They did not want any run-off whatsoever underneath River Road and as a result they were required to go back and design a plan to provide both water quality and flood control on the site. As a result the stormwater management areas were much larger, took up a lot more space and in addition the County required a significant improvement to the River Road side drainage channels and by cutting in it changed the grade going up the hill for quite a distance. So, coupled with the improvement of the drainage along River Road which is a County requirement and putting the stormwater on site which is a County requirement. This is what changed. The residential portion of three lots is what changed. The Senior Housing changed very little. We recognize the fact that the grading on that slope eliminated the existing vegetation that was there. A supplemental Landscape Plan was provided by Kurzon Architects which Clough Harbour reviewed on behalf of the Planning Board for a re-vegetation of that slope. That together with the Saratoga Associates visibility and visual supplemental work in which they reviewed their earlier findings in comparison with the new design plans and these together address Chuck’s concern.
Chuck still feels that there has been a complete disturbance to the buffer zone that we were trying to protect. There is none. Pete stated that he does not think that this was by the applicant’s choice. Chuck questioned if there was a way to provide for the development a little further to the west which might alleviate some of this. He feels that this was never investigated in his opinion. He feels that we could accomplish the same exact thing with much less disturbance.
Roxanne stated that we have to look at the County Department of Public Works requirements which are driving why this has changed to the extent that it has changed. They had 15 conditions on their permit. When the applicant received their first preliminary approval it was based on them getting an easement through River Road but the County has objected to that because of the culverts. The County has driven this change and as a result applicant was required to mitigate and to mitigate this is through the re-vegetation plan. They have provided the solution that works.
Mike Minor questioned Myles about his recommendations and if it is Myles sense that the applicants have met all the requirements of the various agencies. Myles stated that this is his sense and it is based on his discussion with Pete Lilholt and the ongoing discussions with the applicant, at least the information that they have provided and that the other agencies are satisfied. Myles stated that he was a witness to the County DPW saying that they were happy back in November and they are going to provide a permit.
Michael Sprague questioned Myles about his letter of November 14, 2007 in which he stated that an opinion has been rendered by the Ulster County Planning Board that the Town Planning Board should reconsider its prior SEQR Determination made on March 29, 2007 stating that a determination must be considered based on stormwater management, site disturbance and visual changes. Mike asked what has changed since the 14th of November to change that opinion. Myles stated that he does not know what has changed according to this agency since he has not been in touch with Dennis Doyle regarding this. Mike stated that this action will be in direct conflict with this statement.
Mike stated that we have eliminated the 50’ buffer zone, we have additional site disturbance of 1 acre, a 10% increase in site disturbance, we have moved the road 400’, we may or may not have additional road surface, we have eliminated one lot and gone from 4 lots to 3 lots and have had significant changes to the lots themselves. Can we say that this does not substantially disagree with the original sketch plan that was used for the Public Hearing? He does not think that we can say that. He asked if we need to take some action as a Board to agree that this is substantial in order to address this part of our Code. Mike Sprague wanted to know if we need to make a separate determination to say that this is or isn’t substantial. Myles stated that this would be a resolution that this Board would have to make if there are questions about whether it is or is not substantial. The Board would then need to formalize it and someone would need to say that there is or there is not and you will need to go from there. Mike then stated that if we do make a resolution to say that this is not significant does this not open up future applicants to say the Birchez project had all these changes between sketch plan approval and final approval and that went through. Discussion continued regarding Mike’s concerns regarding his feelings that this applicant is not being required to do what other applicants have been asked to do.
Mike Minor stated that one way to look at the situation is that the units are the same. He understands the concern about the visual impact of River Road and the removal of the natural vegetation of River Road but if the applicant provides a solution to resolve that issue, it seems to him that this issue has been addressed. He further stated that he does not know the law in regard to major/minor impact and he is not sure that anybody who is not technically competent in the area can know the law. Mike Sprague stated that today we are saying that these changes are not significant. He feels that they sound significant to him. Mike Minor stated that he asked Myles and Pete whether they feel they are significant under the definition of the law and they both say for the reasons given that they do not perceive them as significant. This does not make our decision for us because clearly this is something the board has to do. Mike Sprague stated that he did not hear them say that. He heard them say that the changes are for the better but they did not say whether they were or were not significant. Mike Minor stated that he did ask Myles a specific question, “Given the proposal that we should grant final approval is that because you feel these changes are not significant?” Myles said yes and stated that he felt that the issues have been dealt with.
Mike Sprague stated that he is a little confused by Pete’s letter. At the beginning, he states that at the request of the Board his comments are based on technical review of the project documents but it is understood that the town planning consultant is reviewing items relative to SEQR, subdivision and zoning but then he goes on to address SEQR issues and there are no technical issues on this. He is not sure if he is standing behind this. He feels that he has qualified it that he is not making statements about SEQR and then he is making SEQR comments.
Pete apologized for the confusion. He stated that the opening paragraph is the same verbage he uses all the time. He provided engineering review. Mike Minor stated that he understands principle that Mike Sprague is talking about and he can also look into the future and see times when someone can point to this and say that we allowed things to go through but on the other hand if there was a change to the reduction of 25% of the senior housing units that would be a major change. He says that we are looking at lot numbers but we have to look at the weight of this in terms of the intent of the project but he thinks he has heard Pete and Myles answer those issues. He thinks Fred’s idea is a good idea and he thinks that if we create a problem down the road then we will have to deal with that problem.
Mike Sprague asked Steve Fell what changed from two weeks ago when we were under the impression that we would have months to review the changes. Steve informed the Board that the Letter of Intent and the Limited Building Permit did not obtain the funding as they had thought it would. Mike Sprague thought that Jim Bruno said that this was what was done in Saugerties. Roxanne informed him that this was a different funding source verses Saugerties funding source.
Chairperson Pecora read Resolution of Conditional Use Permit Approval dated December 4, 2007 prepared by M.L. Putman Consulting. Copy signed, dated and placed in file for review by interested parties.
Myles stated that on Page 5, #1 -A & B it should be Lot 4 not Lot 4A; Page 5, #3 – or disturbs the buffer zone should be removed; Page 5 #2 – A – remove word representatives and add there shall be representation and Page 2, #13 – remove applicant’s and add New York State Housing Finance Agency. On page 6, H change constriction to construction. On page 7 – C – change amount from $40,000 to $75,000.
Discussion took place regarding ownership and maintenance of pump stations for the stormwater design. They will be owned and maintained by the property owners. The town does not want to own them. Fred felt that the town will end up owning them anyway because the town will be the one fined by DEC if they are not properly maintained.
Dennis asked if the Recreation Fee is applicable and Myles checked the Zoning Code for Senior Housing and the feel structure approved by the Town Board that went into effect on Jaunary 1, 2007. Roxanne stated that the Recreation Fee does apply for the Senior Housing Unit. On page 5, #1 – add letter C. Payment of a Recreation Fee for the 81 units at $1,500 per dwelling unit unless subsequently waived by the Town Board. (Applicant was informed that they can go to the Town Board and seek relief of this fee but the Planning Board can not waive that fee. Mr. Fell wants the record to reflect that they object to that fee. Mr. Fell also questioned the possibility of obtaining one Letter of Credit instead of two for this project. He was told that this is not the Planning Board’s decision he would have to discuss this with the Town Board.)
FRED MADE A MOTION TO GRANT FINAL APPROVAL OF THE SITE PLAN ASSOCIATED WITH THE APPROVED CONDITIONAL USE PERMIT FOR BIRCHEZ, CASE #2006-08, SECONDED BY DENNIS. MOTION CARRIED WITH A VOTE OF 4-2. VOTE WAS AS FOLLOWS:
Chairperson Pecora read Resolution of Final Subdivision Plat Approval dated December 4, 2007 prepared by M.L. Putman Consulting. Copy signed, dated and placed in file for review by interested parties.
Myles noted corrections to page 2, #15 last sentence should say State and Federal Deadline; Page 5, #1, line 3 should be two Planning Board members. Page 5, #1, add D. Payment of a recreation fee for each lot at $1,500 per lot.; Page 5, #2, A, line 4 – there shall be representation from the applicant; Page 6, #2, H, line 3 change constriction to construction. (Board members did not want to allow the applicant to have the right to have the recreation fee waived for the subdivision by the Town Board.)
Mike Sprague questioned the Building Permit already issued and if the language in this resolution specifically Item #2 was not in conflict with that permit and shouldn’t that permit be revoked. Roxanne stated that the board can not revoke a Building Permit. That would be up to the Building Inspector. Dennis stated that he felt that this resolution would actually void that permit.
Steve Fell again stated that he would like to provide one letter of credit as opposed to two. Roxanne again informed him that this was a decision for the Town Board.
DENNIS MADE A MOTION TO APPROVE THE FINAL SUBDIVISION PLAT FOR BIRCHEZ ASSOCIATES, CASE #2006-07 AS READ AND AMENDED, SECONDED BY FRED. MOTION PASSED WITH A VOTE OF 4-2. VOTE WAS AS FOLLOWS:
Chuck – He wished to go on the record to state that his issues with this application have always been site plan oriented not subdivision oriented but at this point he does not think that this is a good subdivision any longer.
DENNIS MADE A MOTION TO INCREASE THE ESCROW FOR BIRCHEZ CASE #2006-07/08 BY $7,000. SECONDED BY MICHAEL MINOR. ALL MEMBERS WERE IN FAVOR. MOTION PASSED 6-0.
CHUCK MADE A MOTION TO ADJOURN, SECONDED BY MICHAEL SPRAGUE. ALL MEMBERS WERE IN FAVOR. MEETING ADJOURNED AT 9:00 PM.
NEXT PLANNING BOARD MEETING: December 12, 2007
NEXT DEADLINE DATE: December 6, 2007
April OnetoPlanning Board Secretary