Town Board
SEPTEMBER 10, 2008
A regular meeting of the Jewett Town Board was held on September 10, 2008. Supervisor Michael Flaherty called the meeting to order at 7 P.M. Present were Board members Michael McCrary, JR Quackenbush and Elaine Warfield.
Also present were Attorney for the Town Tal G. Rappleyea, Superintendent of Highways Robert Mallory, Assessor Nancy Wyncoop Bower and zoning Officer William Dwyer; town residents Francis Benjamin, Donna Bernard, David Kessler, newspaper reporter Mike Ryan and the town clerk.
The pledge to the flag was done before the Town’s 9-11 monument.
Councilman Quackenbush made a motion, 2nd by Councilwoman Warfield and carried accepting the minutes of the August 13, 2008 regular Board meeting.
The Supervisor’s monthly financial report was given to the Board.
Supervisor Flaherty made a motion, 2nd by Councilman Quackenbush and carried accepting the monthly written reports from the building Inspector and Zoning Officer.
The Assessor addressed the Board. She asked “if it would be more expedient to e-mail the Board about a week before a Town Board meeting with anything that’s going on and if there are any questions I would then come to the Board meeting.”
The Board was in agreement with this arrangement.
Superintendent Mallory told the Board that the town wide pickup day for metal went well. He reported that all the sand is in and the salt will be coming in soon.
Courtesy of the floor was opened:
Francis Benjamin asked the Board to look into a parking ordinance specifically for Colgate Lake.
Attorney Rappleyea will look into this matter.
Courtesy of the floor was closed.
Update on the ground water study. Steve Trader looked at two locations on the south side of the Schoharie Creek on Little Timber Road.
Supervisor Flaherty made a motion, 2nd by Councilman McCrary and carried approving the following referendum language be placed on the November 4, 2008 ballot.
“Shall the Town of Jewett be authorized to reduce the number of Town Justices from two (2) to one (1)?”
Town Health Officer Teri Martin has moved from the area. Dr. Robert Schneider’s name was suggested to fill this vacancy. Someone from the Board will contact Dr. Schneider and ask if he would be interested in the position.
The CWC will be sending out informational packets to Town’s concerning natural gas projects.
The DEP is looking to purchase about 180.97 acres under a conservation easement. The acreage is located at the end of Little Timber road. There is a 120 day comment period. This item was tabled.
Councilman McCrary made a motion, 2nd by Councilman Quackenbush and carried approving a request for training for the Zoning Board of Appeals and Planning Board members with regard to computer accessing, using the GIS system, and applying the information to the Town’s regulations. The training would be applied toward their training credits.
Attorney Rappleyea will contact the contractors and ask for a starting date for renovations in the kitchen and dining room in the Municipal Building.
Judge Canfield told the Board he has hired a new court clerk.
Councilwoman Warfield made a motion, 2nd by Supervisor Flaherty and carried giving the Judge permission to change the lock on the court room door.
Councilman Quackenbush made a motion, 2nd by Councilwoman Warfield and carried approving the July financial statement. Bank statements were given out for review.
The auditing committee of Councilwoman Warfield and Councilman Quackenbush audited the bills prior to the meeting.
Councilwoman Warfield made as motion to approve the bills. Councilman Quackenbush 2nd the motion and Board members voted Aye.
The general fund was $12,830.45 on abstract #9, claim numbers 221 to 236. The highway fund was $112,967.80 on abstract #9, claim numbers 149 to 163.
The audit committee for October, November and December is Supervisor Flaherty and Councilman McCrary.
Councilwoman Warfield is working on the next town newsletter.
Supervisor Flaherty made a motion, 2nd by Councilman Quackenbush and carried to go into executive session at 7:55 P.M. concerning litigation, financial matters and union negotiations.
Supervisor Flaherty made a motion, 2nd by Councilman Quackenbush and carried to come out of executive session at 8:40 P.M.
There were no decisions made.
Councilman McCrary made a motion, 2nd by Supervisor Flaherty and carried to adjourn the meeting at 8:45 P.M.
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Patricia Merwin Town Clerk, RMC
Zoning Board
September 3, 2008
Roll Call : Chair: Russ Coloton
Members: Margaret Flaherty, Ann Dwyer, Charles Kutcher, Kathleen Williams
The meeting opened at 7:07 pm.
Agenda Item 2: Approval of Minutes of August 6, 2008.
Mr. Kutcher made the motion to approve the minutes. Mrs. Flaherty seconded the motion. The vote was unanimous and the motion carried.
Agenda Item 3: Public Hearing on the Application for Interpretation of Certificate of Non-Conforming Use for Patricia Pelham of 175 Peck Road, Jewett, NY: Tax Map # 112.00-2-5: District: Rural Residential by Paul Pansini of 157 Peck Road, Jewett, NY; Tax Map # 112.00-2-6.
Mrs. Flaherty made the motion to open the hearing. Mrs. Williams seconded the motion. The motion was unanimous and the hearing opened at 7:09 pm. Mrs. Dwyer confirmed that the prior exhibits, A thru H and 1 thru 7, are incorporated into the record of this hearing. In addition, the proper notices documentation for this hearing are marked as Exhibit AA, the notices to the parties of this procedure are marked as Exhibit BB, and the sign-in sheet from this hearing is marked as Exhibit CC. Mr. Coloton explained that at the last meeting members felt that the Board needed to have additional testimony regarding the existence of the business prior to the zoning ordinance and requested Mr. Pelham and Mr. Pansini provide any additional information on this matter. Mrs. Dwyer reviewed the procedure to be followed at the hearing [marked as Exhibit DD].
Mr. Coloton called on Mr. Pansini. Mr. Pansini requested clarification of reason for the hearing. Mr. Coloton explained the Board is requesting additional information. Mr. Pansini requested that the hearing stay open since he only had two weeks notification, was on vacation, and didn’t have time to prepare anything.
Mr. Coloton called on Mr. Kelly. Mr. Kelly, of 61 Peck Road, requested clarification of the purpose of hearing. Mr. Coloton explained the hearing is an appeal of the Zoning Enforcement Officer’s decision regarding the Certificate of Non-Conforming Use. Mr. Kelly stated he purchase his house in 2001 and was told it was zoned residential. Members clarified that it was zoned Rural Residential. He stated that it is a beautiful area and he only noticed activity at the site three to four years ago; the site was materially changed; there was a building, that was not there before, that was constructed, a rather large building; there was no evidence of any business whatsoever; there was no traffic to or from the place; there was no lumber trucks coming to or from the place; there was nothing like there is now in terms of discernible evidence of a business; there may have been, he understood, a portable saw somewhere on the property which is a material change from the kind of saw that is there now; about a year or two ago the land was clear cut and all evidence of greenery disappeared; to the point that to his mind it appears to be the biggest industrial park in Hunter, Tannersville or Windham; it seems to him to be three or four times the size of GNH Lumber in Windham, for example; it is very large and certainly an eyesore; he also started to hear the saw, which he never heard before; there was burning of lumber which was happening on a fairly frequent basis; trucks started coming to the place hauling in huge amounts of lumber and taking out milled lumber; there was absolutely no evidence of that before. He comes up during the week sometimes and sees this activity primarily mid week, there hasn’t been much on the weekends but on Sunday evenings sometimes he hears the saw. He hasn’t heard the saw lately. He would make the point that if this is a pre-existing non-conforming use of land, there is a preponderance of case law in New York State that it is illegal to expand such a business. So even if this were a pre-existing business it could not be clearly expanded. There have been cases where additions on houses had to be removed because they broke the law. This is a far cry from an addition on the house. Mr. Coloton inquired whether he had any specific cases. He could not site case law then, but he could certainly get them to the Board. He stated he spoke to a friend at DEC and they know nothing about this business, and that New York State does not know about this business. If New York State does not know about this business, then that would certainly call into question the whole thing because there has to be a Schedule C filed with the IRS and that should have been done every year. He also understands that there are going to be installed some generators on the property, large generators, which will create a lot of noise and further pollution. He asked ‘when does this stop? Every year it gets bigger and bigger and generators? This is a residential area, a rural residential area, more to the point.’ Mrs. Williams inquired whether he got any written records from DEC or the state or the county. He submitted a USGS area photo from April 2001 with information [marked as Exhibit 9]; a November 2007 photo (wide view) [marked as Exhibit 10]; and a November 2007 photo [marked as Exhibit 11]. He stated that he just spoke to friends at the DEC; he would have to get formal notification. Mr. Kutcher inquired why he spoke to DEC. He replied that there are some issues concerning the nature of the business they should know about it. For example, if he is going to put some generators in, he has to get air rights for it. He stipulated that he is making a public objection to the business.
Mr. Coloton called on Mr. Mallory. He stated that in 1985 he built the road, Bobbillin Drive, and he sold 16 lots to all retired people. He does not hear a saw mill and it is next door to him. He knows that the people who are retired probably don’t want that. He stated he bought 7 acres on the corner of Bobbillin and Peck and right in his deed it says he cannot start a business on that property; and he put it in every deed he sold of the 16 lots: that you can’t start a business. He knows his father had the saw mill before Michael Pelham did. Mr. Coloton inquired when the father had it. He replied he had no idea, he knew his father had the electric business there, he was an electrician. Mrs. Dwyer requested clarification that the deed restrictions were on the 16 lots that he sold; he did not sell the lot to Mr. Pelham so the deed restrictions are not on their lot. He stated that he did not sell them their lot and he was surprised that no one checked the Pelham deed to see if there are deed restrictions in it, because every piece of land that the Pecks sold had that restriction in it: that you can’t start a business. Mr. Mallory clarified that he bought 82 acres from the Pecks with no restrictions and he put the restriction in all the three and five acre lots of his subdivision in 1985 an 1986. Mr. Peck owned the property prior to Mr. Mallory’s purchase.
Mr. Kelly then stated that it is his understanding that it has to be the same business, it cannot be an electrical business and then a saw mill; that does not work; there is no continuity; it has to be the same business. You can’t have a beauty parlor in your basement and then open a car dealer. It has to be the same business.
Mr. Coloton called on Mr. Michael Pelham. He submitted and described additional documentation: a letter from Mrs. Patricia Pelham [marked as Exhibit 12]; a letter from Michael Pelham with business documentation [marked as Exhibit 13]; additional job documentation (photos and list) [marked as Exhibit 14]; and original saw documentation and a manual [marked as Exhibit 15]. Mr. Pelham stated that he will be providing additional information and he explained that it is in his ex-wife’s possession and he is having a little bit of difficulty getting it. Mr. Coloton inquired about his business records around 1991 and he stated that he does not keep his records past seven years. Mr. Coloton inquired about old family photographs of the property around that time. Mr. Coloton explained the Board has to look at what existed there at the time of zoning and requested any kind of documentation to back the existence of the business. Mr. Pelham stated he would look for the information. Mr. Pelham stated that it is a portable saw mill, it came and left, it wasn’t set up full time, it was periodic thing, he had it there a half a dozen winters over the years, it wasn’t a permanent saw, never had been. Mr. Coloton inquired whether the saw operated there every year since 1991. Mr. Pelham replied that it was pretty close to it. He stated that he stored it there and when it wasn’t there, it went to various places where he worked. Mr. Kutcher inquired how much time it was used on the property. Mr. Pelham replied that it was hard to say, he has used it forty (40) hours since April. It was hard to say, it was periodic, it wasn’t there all the time, there is no question about that.
Mrs. Heinemann inquired of Mr. Pelham whether he lived in Albany since 1984 and didn’t he have his business in the County of Albany. Mrs. Heinemann stated that since she lived there from 1984, there was no saw mill there. If there was a saw mill, there was a saw mill for cutting wood for private use, that she believes, but not to make lumber because if you have cows on the field, the cows would go bananas if you run a big saw. She stated that in 1991 there was an electric business, but no saw.
Mr. Kelly inquired what the function of the saw was: was the saw there used as a saw mill or for the electrical business, to make telephone poles or what? Even if there was a saw there but there was no saw mill business, then there was no business.
Mr. Pansini inquired whether if you have a portable saw, just because he parked the saw and he operated for an hour one day a year that location now becomes your residence for that business, and taking that saw for another day and operating it then that location is another location for the business; you can pop around all over the place and accumulate these locations as a business. That doesn’t make sense to him. If it was a permanent structure on the property, he could understand it being a business. But if he’s hauling something around all over the place, he’s doing it because he doesn’t have a permanent location, he’s doing it on location for particular jobs; he doesn’t understand how that qualifies as a business.
Mr. Heinemann stated that there are many people that do have saws at their house and use it for their own private use.
Mr. Coloton replied that is why we are asking Mr. Pelham for any evidence he can provide of the business that was conducted at that location, which will help in our decision; that is what we have to interpret. Mr. Kelly inquired whether that would include tax records, if you have a business you have to file taxes. Mr. Coloton replied that any business record around that time is what the Board is looking for.
Mr. Coloton moved that the testimony at this time be closed; that the hearing be adjourned until October 1, 2008 at 7:00 pm; and that additional documentation be accepted during this time.
The Board explained to the public the procedure to be followed regarding adjourning the hearing. Mr. Kelly inquired whether the hearing will address expansion of the business. Mrs. Dwyer stated that if he wants to expand the business in the future, it is not the subject of the Certificate of Non Conforming Use; however, it would be subject to action probably by the town Planning Board. Mr. Kelly clarified he was inquiring about whether the expansion of the business that is in evidence since he moved here would be addressed. Mrs. Dwyer replied yes it would be taken into account. Mr. Kelly stated that this pre-existing non conforming use, the question has to do with the substantiation of the business during the time of the change in the Zoning Laws. The expansion of the business from day one of the business is a separate question and that is where the case law is extremely strong. There was no evidence of a business when he moved there; all the expansion has taken place since; it would fall under an expansion of whether there was a business in evidence; and we don’t know. That is what you’re trying to decide. And if there was, it certainly was materially expanded three years ago. That is a key question. That is not legal. You can’t take an existing business, a non-conforming use, and then expand it. The only thing that a pre-existing variance allows you to do is continue the business, you can’t materially change it and this business has been materially changed. Mr. Kutcher explained that the first question to be decided is: was there a business that existed and what it looked like prior to zoning in 1991. The next decision is whether that type of business existed up until April 19, 2008, without a three year break. That meets the requirements of the law for the certificate of a business that existed in 1991 without material expansion. If those requirements are met, then there has to be a determination about whether there was a material expansion of that business. Mr. Kelly stated that there will be an additional issue that has to come up somewhere. The problem is this: you can argue a pre-existing business in many, many ways. The law is very clear that if that can be established to everybody’s satisfaction, fine. But that is the business that has to continue. If you then start to have lumber trucks coming in and out; establish a stationery several-ton saw; start thinking about putting in generators; cut down trees and expand it to five acres; have dump trucks all over the place; earthmovers; caterpillars; that is not what was there before and that cannot be done. And that is, to him, the central issue. If the business existed before, that is one question. But that is not the biggest question. How is it that this thing could have been expanded into the behemoth that it is now? It’s incredible; absolutely amazing; that anybody could consider doing that in a residential area; it is callous disregard for neighbors. And that is the question. How could this thing come from a pre-existing business that was apparently in a shed somewhere, to what it is now? That is where your zoning law is relevant. When does that decision get considered?
Mr. Coloton reiterated what information the Board is looking for and the deliberative process as explained by Mr. Kutcher. Mrs. Flaherty indicated that we have to look at our law and the intent of the law. Mr. Coloton called for any more comments from the public. No one else addressed the Board.
Mrs. Dwyer stated there is a motion made to adjourn the hearing. Mr. Kutcher seconded the motion. The vote was unanimous and the hearing was adjourned at 8:09 pm.
Agenda Item 4: Application for Interpretation of Certificate of Non-Conforming Use for Patricia Pelham of 175 Peck Road, Jewett, NY: Tax Map # 112.00-2-5: District: Rural Residential by Paul Pansini of 157 Peck Road, Jewett, NY; Tax Map # 112.00-2-6. This application is tabled until the Public Hearing is closed.
Agenda Item 5: Other Business
Application for Area Variance for Peter and Lyn Gillespie of 1378 Goshen St. Jewett, NY, Tax Map No. 111.00-2-21, District: Rural Residential. Mrs. Dwyer reported this application is pending waiting to hear from the applicants. Mr. Coloton requested the file so that Mrs. Williams could review it. He noted that this is a non-conforming building on a pre-existing undersized lot and members should review the law in relation to the application when they notify us they will be returning.
Mrs. Dwyer reported that the Catskill Watershed Corp. is holding the Catskill Local Government Day in October.
Mrs. Dwyer informed the members that she spoke to the Supervisor and Mr. McCrary regarding computer training for the members which would qualify as part of the required training. Mr. Coloton noted that the Town Board would have to approve such training. Mrs. Dwyer commented that it could focus on how to use the County GIS system and include members of the Planning Board. Mr. Coloton made the motion that the secretary request from the Town Board Representative, Mr. McCrary, to seek approval from the Town Board for computer training with regard to the County GIS interactive map in relation to our regulations, that members of the Planning Board be included, and that this training be approved as part of the required board training. Mrs. Flaherty seconded the motion. The vote was unanimous and the motion carried.
There being no other business, Mr. Kutcher made the motion to close the meeting. Mrs. Williams seconded the motion. The vote was unanimous. The meeting ended at 8:37 pm.
Respectfully submitted,
Ann Dwyer
Secretary
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Accepted
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