Town Board
NOVEMBER 5, 2008
A regular meeting of the Jewett Town Board was held on Wednesday, November 5, 2008. Supervisor Michael Flaherty called the meeting to order at 7 P.M. Present were Board members JR Quackenbush, Elaine Warfield and Steve Jacobs. Absent was Board member Michael McCrary.
Also present were Attorney for the Town Tal G. Rappleyea, town resident David Kessler, newspaper reporter Mike Ryan and the town clerk.
Supervisor Flaherty made a motion, 2nd by Councilman Quackenbush and carried accepting with regret the resignation of Steve Jacobs from the town planning board effective 11-4-08.
Attorney Rappleyea swore in Steve Jacobs as the newly elected official on the Town Board.
The Supervisor’s monthly financial report was given to the Board.
Councilwoman Warfield made a motion, 2nd by Councilman Quackenbush and carried accepting the minutes of the October 8, 2008 regular meeting and the September 24 and October 13, 2008 budget workshop minutes.
The Tuesday, October 28th snow storm and ensuing power outage were discussed. Approximately 366 Town residents were still without power on Thursday. A Red Cross shelter was opened in the Jewett Presbyterian church. The Board also had information that the East Jewett Fire Department was equipped with generators and could furnish heat and shelter for those in need, but they are not a certified Red Cross shelter.
Councilwoman Warfield would like to put information on shelters in town and phone numbers to call for assistance in the next town newsletter.
The Town will continue to work closely with the County on an emergency plan.
Supervisor Flaherty made a motion, 2nd by Councilman Quackenbush and carried appointing Dr. Robert Schneider as the Town’s health officer.
Councilman Quackenbush made a motion, 2nd by Councilwoman Warfield and carried accepting the Supervisor’s September financial statement.
The audit committee of Supervisor Flaherty and Councilman Quackenbush audited the bills prior to the meeting.
Councilman Quackenbush made a motion to approve the bills. Supervisor Flaherty 2nd the motion and Board members voted Aye.
The general fund was $10,929.04 on abstract #11, claim numbers 266 to 282. The highway fund was $4,615.33 on abstract #11, claim numbers 186 to 193.
Supervisor Flaherty made a motion, 2nd by Councilman Quackenbush and carried approving Resolution #21. This resolution is regarding Attorney Expenses.
“Whereas, any future request for Attorney services, outside the retainer, must be approved by the Board as a motion.
Whereas, so that discussion does not lead to research, and
Whereas, expenses for this item are controlled by the Town Board there should not be any surprises when the bill (invoice) arrives.
Therefore be it resolved, it should be noted that Attorney’s services to the Planning Board and ZBA Board for the most part are covered by the escrow accounts of the applicant”.
ROLL CALL VOTE AYE Flaherty, Jacobs, Quackenbush and Warfield.
Supervisor Flaherty made a motion, 2nd by Councilman Quackenbush and carried to go into Executive Session at 7:45 P.M. on financial matters.
Councilman Quackenbush made a motion, 2nd by Councilwoman Warfield and carried to come out of Executive Session at 8:12 P.M. The Board agreed not to increase salaries in the 2009 budget for the Supervisor and Town Board members.
Councilman Quackenbush made a motion, 2nd by Supervisor Flaherty and carried to adjourn the meeting at 8:15 P.M.
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Patricia Merwin, Town Clerk RMC
Special Meeting
NOVEMBER 20, 2008
A special meeting of the Jewett Town Board was held on Thursday, November 20, 2008. Supervisor Michael Flaherty called the meeting to order at 6 P.M. Present were Board members Steve Jacobs, Michael McCrary, JR Quackenbush and Elaine Warfield and the town clerk.
The purpose of the special meeting was to hold a public hearing on the preliminary budget for 2009 and any other business that may come before the Board.
The Public Hearing was opened.
No one from the public was present.
Councilman Quackenbush made a motion, 2nd by Councilman McCrary and carried to close the public hearing.
Councilman Quackenbush made a motion, 2nd by Councilwoman Warfield and carried to adopt the preliminary budget to become the annual budget for 2009.
ROLL CALL VOTE: Aye Jacobs, McCrary, Quackenbush and Warfield.
Nay Flaherty
Councilman McCrary made a motion, 2nd by Councilman Quackenbush and carried to adopt Resolution #22. The resolution is in reference to a possible zoning violation and reads as follows:
WHEREAS, Attorney for the Town Tal G. Rappleyea has recused himself because of potential conflict of interest, and
WHEREAS the Town requires council to prosecute the matter,
THEREFORE BE IT RESOLVED the Supervisor is hereby authorized to engage outside council subject to review by the Town Board of the terms of the contract.
ROLL CALL VOTE: Aye Flaherty, Jacobs, McCrary, Quackenbush and Warfield.
Supervisor Flaherty made a motion, 2nd by Councilman Quackenbush and carried accepting with regret and thanks the resignation of Paul Rosedale from the Planning Board effective immediately.
Supervisor Flaherty made a motion, 2nd by Councilman Quackenbush and carried to go into Executive Session at 6:28 P.M. on financial matters
Supervisor Flaherty made a motion, 2nd by Councilman Jacobs and carried to come out of Executive Session at 6:40P.M.
Supervisor Flaherty made a motion, 2nd by Councilman Quackenbush and carried to pay the ambulance bill of town resident Keith O’Mahoney.
Councilman McCrary made a motion, 2nd by Supervisor Flaherty and carried to rescind Resolution #21 passed at the regular meeting held November 5, 2008. The Board will rewrite the resolution.
Councilman Jacobs made a motion, 2nd by Councilman Quackenbush and carried to adjourn the meeting at 6:45 P.M.
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Patricia Merwin, Town Clerk, RMC
Zoning Board
November 5, 2008
Roll Call : Chair: Russ Coloton
Members: Margaret Flaherty, Ann Dwyer, Charles Kutcher, Kathleen Williams
The meeting opened at 7:02 pm.
Agenda Item 2: Approval of Minutes of October 31, 2008.
Mrs. Flaherty made the motion to approve the minutes. Mr. Kutcher seconded the motion. The vote was unanimous and the motion carried.
Agenda Item 3: 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.
Mr. Coloton stated that at the October 31st meeting a continuing review and discussion of the pertinent evidence was conducted and a proposed resolution was introduced. The proposed resolution was ‘the certificate was improperly issued based on insufficient evidence provided supporting the “Home Construction Business/Carpentry Business/Sawmill Operation” as stated on the certificate’. Mr. Coloton then requested the Secretary read the resolution into the record and Mrs. Dwyer complied. It is attached as part of these minutes. Mr. Coloton then asked for any comments or further discussion. Mr. Charles Kutcher made the motion to accept the resolution as read. Mrs. Williams seconded the motion. ROLL CALL VOTE: MR. COLOTON – AYE; MRS. WILLIAMS – AYE; MR. KUTCHER – AYE; MRS. FLAHERTY – AYE; MRS. DWYER – ABSTAIN. The resolution was carried by a vote of 4 to 0 with 1 abstention and was thereupon declared duly adopted this 5th day of November 2008.
Agenda Item 4: Other business:
Mrs. Dwyer stated that she could have the adopted resolution ready for the Chair’s signature the next day and, with the consent of the members, recommended the Board cancel the additional meeting scheduled for November 6th, since it is no longer necessary. Members agreed. Mrs. Dwyer formally informed the representative of the press, Mr. Michael Ryan, who was in attendance, that the meeting is cancelled. Mr. Ryan acknowledged the notification.
There being no other business, Mrs. Flaherty made the motion to close the meeting. Mr. Kutcher seconded the motion. The vote was unanimous. The meeting ended at 7:45 pm.
Respectfully submitted,
Ann Dwyer
Secretary
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Accepted
RESOLUTION
TOWN OF JEWETT ZONING BOARD OF APPEALS
INTERPRETATION OF PAUL PANSINI APPEAL OF
PATRICIA PELHAM CERTIFICATE OF NON-CONFORMING USE
NOVEMBER 5, 2008
HISTORY
Mr. Paul Pansini, owner of a certain parcel of land in the Town of Jewett located at 157 Peck Road Jewett, NY, hereinafter “the applicant” has sought an interpretation regarding whether the Certificate of Non-Conforming Use issued by the Town of Jewett Zoning Enforcement Officer to Patricia Pelham, owner of a certain parcel of land in the Town of Jewett located at 175 Peck Road Jewett, NY, was issued in error.
The Town of Jewett Zoning Enforcement Officer, hereinafter “the ZEO”, issued a Certificate of Non-Conforming Use to Patricia Pelham on April 14, 2008 citing various uses: home construction business/carpentry business/sawmill operation, two one-family dwelling units; which was accepted into the record as Exhibit B
The public hearing herein was called to order on July 2, 2008 and was closed with the record kept open as of that date until the regularly scheduled August, 2008 meeting of the Jewett Zoning Board of Appeals, hereinafter referred to as the “Board”. Thereafter, the Board discussed the application, proof and related issues at its regularly scheduled meeting on August 6, 2008 and determined that there was insufficient evidence submitted to make a determination. The Board resolved to notify the parties to the action and to schedule a new public hearing. The public hearing was called to order on September 3, 2008 and reconvened on October 1, 2008. The hearing was closed on October 1, 2008. Thereafter, the Board discussed the application, proof and all related issues on October 1, 2008, at an additional meeting on October 31, 2008 and at its meeting on November 5, 2008 and made a resolution determining that the Certificate of Non-Conforming Use was improperly issued.
The following is the formal written rationale which the Board adopted in making its final resolution. The Board received proof of the proper publishing of the notices of the Public Hearings in the newspaper of record, proper certification of public hearing notice sign postings, and proof of the proper notices by mail to all landowners adjacent to the property which is the subject matter of the within application in accordance with Jewett Zoning Law. The applicant submitted an application seeking a determination by the Board regarding the nature of the alleged pre-existing nonconforming use of buildings and land on the above-mentioned property. The Town of Jewett Zoning Law, which became effective September 10, 1991, as it relates to pre-existing non-conforming, is as follows:
ARTICLE VII. NON-CONFORMING BUILDINGS AND USES
A. Continuation
The lawful use of any building or land existing at the time of the enactment of this local law may be continued although such use does not conform to the provisions of this local law.
B. Discontinuance
Whenever a building or land used for, or occupied, by a non-conforming use has been discontinued for a period of three years, such use shall not thereafter be used or occupied as a non-conforming use.
Mr. Richard Pelham and his wife Patricia purchased the property in 1979 and constructed numerous buildings on the property prior to the adoption of the Zoning Law. According to Mrs. Patricia Pelham’s testimony, these buildings were used for numerous purposes by her husband and sons including two one-family residences, electrical contracting business, maple syrup production; agricultural farm animals, home construction business, carpentry business, and sawmill operation; which were accepted into evidence as Exhibits B, 7, and 12.
The Board questioned Mr. Michael Pelham, her son, seeking additional information including written records, and any other financial documentation supporting some of the various uses. Mr. Michael Pelham submitted two timeline listings of jobs he worked on locally along with pictures of the jobs; which were accepted into evidence as Exhibits FF and 14. Mr. Michael Pelham also submitted additional written testimony and business documentation; which were accepted into evidence as Exhibits B, 13, 15, and 20. In addition, Mr. Michael Pelham testified that the saw mill is portable and he has been milling lumber since 1985 or maybe 1983; he also has a carpentry business and has stored equipment and machinery at the location; in 1994, he moved but he maintained work in the area; his attorney suggested he register the Forest to Final Form as a separate corporation, it is a part of Michael Pelham Custom Built Homes, which he operates as a d/b/a since the early 1980’s beginning in ’83-’85. He testified that additional information is in his ex-wife’s possession and he is having a little bit of difficulty getting it; that he does not keep his records past seven years; that it is a portable saw mill, it wasn’t set up full time, it was periodic, he had it there a half a dozen winters over the years, it was operated there pretty close to every year since 1991, he stored it there and when it wasn’t there, it went to various places where he worked.
Mr. Leonard Mallory, a neighbor, stated he does not hear a saw mill and it is next door to him; he knows Mr. Richard Pelham had the saw mill before Michael Pelham did, but he had no idea when.
Mr. Paul Pansini, the applicant, submitted written testimony disputing some of the various uses; which were accepted into evidence as Exhibits D and 2. Dr. Janet Pansini and Mr. Paul Pansini, Dr. Kelly, Mr. and Mrs. Helmut Heinemann, Mr. and Mrs. Bryan, neighbors of the subject property, also submitted written testimony; which were accepted into evidence as Exhibit D, 1, 3, 5, 6, 9, 10, 11, 16, 17, and 22.
Mr. Paul Pansini testified that he checked with the New York State Department of State and the only corporation he found registered under Michael Pelham’s name was Forest to Final Form, Inc. He could not find anything registered under Michael Pelham Custom Homes nor could he find any business registered as Michael Pelham d/b/a. In addition, he testified that according to his parents between 1985 and 1990 the electrical business was there; the only business the Heinemanns knew about was the electrical business as well as a garage that contained some supplies and equipment for the business; and the other business was maple syrup production; that is all they were aware of.
Mr. Helmut Heinemann testified that the large picture of the property was taken in the early 1990’s from a sightseeing airplane; that Michael Pelham did not have a saw mill business before zoning when into effect nor from 1990 until 2006, that was the year the business started and the equipment was there.
Mrs. Rena Heinemann testified 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; in 1991 there was an electric business, but no saw.”
FINDINGS
Several preliminary findings must be set forth in order to establish the ultimate findings and decision herein.
At the commencement of the public hearing the Board unanimously carried two motions, the first relating to the applicability of the State Environmental Quality Review Act. The Board finds that in accordance with 6 NYCRR 617.5(31), zoning interpretations are exempt from SEQRA as a Type II action. Thus, as it relates to the within Board interpretation, no such review occurred. The Board again endorses such findings.
Pursuant to §239(l) and (m) of the General Municipal Law certain applications before Town Zoning and/or Planning Boards must be referred to the County Planning Board. The Board finds that a zoning interpretation is not one of the delineated actions requiring such referral and thus same did not occur. The Board again endorses such findings.
The Board finds that the Town of Jewett Zoning Law was enacted in August 1991 and that subject matter property is located in a Rural Residential zone as defined in the Town of Jewett Zoning Law.
Testimony and comment, either written or verbal, were provided by various persons. In several important areas, testimony or comment stood in direct contradiction to subsequent or preceding testimony or comment. Given the time span in question, it is not unreasonable to expect contradiction and vagary by those giving comment and testimony, no matter how well meaning. The articles of law dealing with continuance and discontinuance however are very clear and the effective date (September 10, 1991) of that law is specifically stated.
In the absence of written corroborating evidence of any substance that could refute or support contradictory testimony and comment, or prove such non conforming uses were in place prior to the effective date and suffered no discontinuance of a three year period, or prove such non conforming uses were not in place prior to the effective date or suffered a discontinuance of three years; it is not possible to determine whether the use as a “home construction business/carpentry business/sawmill operation” meets the specific terms as applied to the clauses of Continuance and Discontinuance articulated by the Zoning Law (Article VII, Paragraph A and Paragraph B) as presented in the Pelham’s Certificate of Non Conforming Use. The Board specifically finds that it does not have the jurisdiction or authority to amend or modify the aforementioned Certificate of Non Conforming Use and is limited by the Town of Jewett Zoning Law to interpret the meaning of terms within the Law. The Pelhams are encouraged to readdress the issue of the wording of the Certificate with the ZEO and create a Certificate that expresses the actual commercial activities that have occurred at the site continuously since before the implementation of zoning in Jewett.
The above decision is hereby placed before the Zoning Board of Appeals as a resolution to determine that the Certificate of Non Conforming Use was improperly issued.
RESOLUTION OFFERED BY: Charles Kutcher SECONDED: Kathleen Williams
ROLL CALL VOTE:
CHAIRMAN RUSS COLOTON AYE
MEMBER KATHLEEN WILLIAMS AYE
MEMBER CHARLES KUTCHER AYE
MEMBER MARGARET FLAHERTY AYE
MEMBER ANN DWYER ABSTAIN
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RUSS COLOTON, CHAIRMAN
The resolution was carried by a vote of 4 to 0 with 1 abstention(s).
The foregoing Resolution was thereupon declared duly adopted this 5 day of November 2008.
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