Minutes

Eden Planning Board

December 19, 2006

 

FINAL

 

MEMBERS PRESENT:

 

Mark Agle

Dennis Bawdy

Juanita Majewski

Jerry Schwab

Bill Zittel

Ed Krycia, Liaison

Rich Ventry, Liaison

 

GUESTS:

 

Mike Bolo, Observer, Economic Development Committee

 

Chairman, Mark Agle called the December 19, 2006 Planning Board meeting to order at 7:10 p.m.  The minutes of the October 31, 2006 and the November 28, 2006 Planning Board Meetings were approved as submitted and printed, so moved by Bill Zittell, seconded by Dennis Bawdy.   

 

NEW & UNFINISHED BUSINESS:

 

MINIKIME – Our first item is the Evelyn & Beverly Subdivision. I guess, Dick, you are looking for an update.  Mr. Minikime – Yes, here is a punch list from November and everything has been addressed except for the one about drainage.  According to the Town Attorney, Mr. Trask, since the surrounding property is mine, I must send a letter to the Town Board requesting the creation of the Drainage District.  (A sample copy was supplied to Mr. Minikime as provided by Ann Knack.)  Here is the description of the 5 acres of parkland that will be transferred for green space, and also for the lease because you will have access from Evelyn by way of a 70 right-of-way to get back to the parkland.  When the roadway is built, the 5 acres will front on that road but for now I have to give you [the Town] a lease from Evelyn back to the parkland and then ultimately transfer the property and build the road.  There was a memorandum of understanding [summarizing the agreement between Minekime and the Town Board concerning the parkland issue] drawn up back a year or so ago but the legal documents still have not been put together.

 

Mark - There really is nothing that anyone disagrees on at this point, we just need to tie up some loose ends.  In our information packets we have a legal description for the access easement, which will be permanent unless a road is built and then it would be dedicated to the Town and the park would then front on the roadway.  Here is a legal description of the parkland, which is roughly 5 acres and then there is a legal description for what would be the drainage district.  So that’s where be stand.

 

Dana (from Wendel) Just so we are all on the same page for this project, the project received Preliminary Plat Approval a few years ago.  From our understanding they have been working with the Erie County Health Department as well as other agencies to get the various required permits and regulations under control and in-line.  Basically that is what has gotten us to this point.  SEQR granted the negative declaration.  However, no Final Subdivision Approval has been granted and that is why Mr. Minikime is back here.  Our recommendation at this time is to grant Final Approval with conditions based on the outstanding items, which will allow this development to move forward.

 

Discussion between Mark/Dana/Mr. Minikime – The Planning Board can waive the requirement for a second public hearing prior to Final Plat Approval if we agree that there are no substantial changes to the approved preliminary plan.  The only condition, if we were to approve the Final Plat, would be the creation of the Drainage District and final approval of the drainage calculations or any other outstanding engineering issues by our engineers, it looks like Mr. Minikime has already addressed most of those issues.  The last thing would be to authorize the signing of the map covers when the conditions have been met.  Is there anything else?  The Erie County Water Authority has granted approval as to the water issue.  There is a letter confirming that approval.  The sanitary sewer issue is outstanding pending the final walk through, which apparently has not been done.  That’s why any motion we make for approval would be conditioned upon Minekime satisfying those few issues.  I cannot sign the map cover until those issues are taken care of.  So you and your engineers will have to make sure that you go through and follow-up with those steps and gets those approvals.  Apparently the County has changed their submission requirements and now we must submit as-built plans for the sewer and I do not know if Nussbaumer & Clarke (Minekime’s Engineers of record) submitted those yet or not.  Once those are submitted the final walk through can be done.  The bond issue is moot because the over all length was not over the allotted length.

 

Bill Zittell - I’ll make the motion that we conditionally approve the Final Plan and waive the public hearing based upon the above conditions and as outlined in the November 21, 2006 correspondence from Wendel Duchscherer to Mr. Minikime.  Seconded by Juanita Majewski.  All “ayes” motion carried.

 

VERIZON TOWER – As you will recall, Verizon was before us a few months ago looking at locations to build a cell tower.  Their preferred site was in the center of Town behind the former hardware store.  We advised them to look at alternative sites and they are back before us with two new locations.  We have a representative here, Coleman Burke, on behalf of Verizon.  Mr. Burke - Verizon is currently looking at the Feasley farm property on West Church but have not been able to come to any kind of an agreement with the property owner as of this date.  The other property location, which appears much more promising, is behind the Eden Bowling Center property on South Main Street.   Verizon is looking for the go ahead to look further at this property.  According to the Verizon engineers these two alternate locations will provide the necessary coverage area for the tower’s signal.  Bill Zittel - The new location behind the bowling alley building seems to be the more logical location since it would be in an industrial area.  Mark – This location is much less obtrusive to the scenery since it is further away from the town’s central location.  Mr. Burke – We will try to get everything ready before your next meeting but the timing will be tight.  Mark – Okay, we look forward to seeing you again.

 

MISC. REPORTS

 

Mark - We have a few items from the Supervisor’s Office/Town Board.  The Special Use Permits are all coming up for renewal.  Two of them have potential issues associated with them.  So we have been requested to give some insight and/or recommendations to the Board concerning these issues.

 

The first one is Eden KinderKare.  If everyone would take a moment to quickly review his or her letters, specifically item 1.  Mark – Apparently in 1990 they went through the whole process, site plan, special use permit, etc., which was then subsequently granted for 55 children.  Several years later they were granted permission to increase enrollment to 70 children.  Recently, Erie County went through its process of inspections, etc., and rated the facility capable of increased capacity to 85 children.  Scott is apparently going to inspect the premises as well.  To date I do not know if this has been accomplished.  Scott, I guess will provide his input to the Board for their consideration as well.  But, they are asking us if we have any issues, whether it is regarding a site plan or any conditions to be imposed.  Apparently there is some concern within the neighborhood because of the increased number of children that additional playground equipment has been installed closer to the property line.

 

Was playground equipment part of the original site plan back in 1990?  We don’t know off-hand.

 

Mr. Eric Ohmit, is present and he, as the owner of the neighboring property is here to voice his concerns as follows:  when they bought the house 4 years ago, all of the playground equipment was next to the church building.  About 2 years ago they installed new playground equipment on the property nearer to our property.  It was visible from our windows.  So we installed a fence along the property line to gain back some privacy from the kids playing on the equipment.  New they have installed new and larger playground equipment just off the end area and to the right of where our fence ends and it is once again visible and disrupting to the privacy of our yard and windows.  We asked them to relocate it.  The church itself had no issue with that request and they were okay with the request, but the childcare facility itself has been stonewalling us.

 

Mark - I cannot imagine that the additional playground equipment was on the original site plan.  It probably wasn’t.   Not everything requires a site plan.  I don’t believe swing sets fall within that realm.  I believe the building inspector would be better equipped to resolve that issue.  But since this is subject to renewal, the Town Board has a lot to say and they have a lot of leverage as to conditions they can impose as part of any Special Use Permit.  I was thinking that we could recommend to the Board that they consider, based on the fact that the health department approved it and if the building inspector approves is based upon his inspections, that they if they grant renewal of the Special Use Permit, it would be conditioned upon the possibility of submitting a new site plan.  Also, the Town Board could perhaps get them to acknowledge publicly, that they will either move the equipment or do something to take care of the concerns of the neighbors.  Failure to do so could then jeopardize subsequent renewals of their Special Use Permit.

 

Bill Zittel – What would be a fair and equitable distance or solution to the playground location?  Where would you want them to move the playground equipment?  I don’t think you are asking them to remove it but you would like more of a buffer, is that correct?  Would that be better for you?

 

Mr. Ohmit – If they could move it 20 or 30 feet closer to the church so it wasn’t directly in our line of site from our back windows, that would be ideal.

 

Mark – Is it on or near the property line or encroaching on to your property?

 

Mr. Ohmit – No, not at all.

 

Bill Zittel – Okay, not specifically knowing the property, is 20 or 30 feet where you would recommend?  Is that a spot where it is safe for the children?

 

Mr. Ohmit – Yes, I believe so and I think that actually would be where the previous equipment was located and this current equipment was located until they picked it up and moved it.

 

Mark – So it would not appear to be a big deal to move the equipment.

 

Mr. Ohmit – One other issue I would like to bring up is regarding the obvious increase in the number of children and the additional equipment and the intent of the original Special Use Permit and whether they are violating that.  Do they have to resubmit for the increase to 85 and have a public hearing?

 

Mark – Well if their request is granted and they are renewed accordingly, it would be for the same amount that the County approved which is 85 or less.  Not 86, not 95.  It would be up to the Town Board and the Town Attorney to advise them as to the resubmission process for an increase.  We are only a recommending Board on this matter.  Procedurally, I don’t know.  Dana, do you know?

 

Dana - No, we can only act on the recommendation of the Building Inspector, he may request a current site plan so the Board can have a better understanding of the property and the extent of its current and proposed uses.  Solutions may be something as simple as using the existing setback requirement for that zoning and making determinations based on that.  Or it could be even simpler by just installing some shrubs, bushes or other landscape material to create a buffer.  But again, Scott would have look at the property, the setbacks, the equipment, etc., and offer his input. However, since the County approved 85 based upon the standards set by NY State.  That determination is the standard that the Building Inspector and the Town Board would have to consider.

 

Ed Krycia – I think the real issue before the Board was whether or not there is a violation of there Special Use Permit because they maybe in excess of the previously approved 70 children.  The fact that the health department approved 85 should not matter because we, as the Town Board can be more restrictive.  Despite being approved for up to 85 by the County, if they are operating within the 70 allowed under their current permit, then I don’t believe we have any cause to deny the permit or that we can even add conditions to it.  As far as set backs for swings and playground equipment I don’t think we have any requirements for that.  This is more of an issue of neighbors disagreeing and they should be nice to each other and work out an amicable solution to the problem.

 

Mark – I think you are right, Ed.  I think if they are coming in for renewal and they are in compliance, and if that compliance can be determined, (it is up to Scott to make that determination through his inspections) the permit would likely be renewed.  So unless there is something in the Code as to the placement of commercial playground equipment, the only way we can put more conditions on the permit is if they want to approach us to expand.  Then we can say, here are the conditions.  Otherwise it’s a quid pro quo, they get approval and away they go.

 

Ed Krycia - Okay, may I interject again. (I’m going to read this from the Code of the Town of Eden as to Special Use Permits. Paragraph 225-46.)  “In approving any such use, the Town Board shall take into consideration the public health, safety and welfare and the comfort and convenience of the general public and other residents…”

The original permit was issued in 1990.  The permit was changed in 1993.

 

Mark - So I think that’s the issue that the Board has to determine.  1. Whether they are at 70 or less.  Hopefully Scott can determine that.  Then if they are adamant that they want to go beyond the 70, then they may have to go through the whole process again.  Until then they have to operate under what they are approved for.

 

Juanita Majewski – It seems that if they went through the process of changing their State License, then they are probably close to 85 otherwise why would they go through that.

 

Mark – I agree.  But we don’t know if they took any action.  It may be just that the County or the Health Department was simply doing its routine annual inspections and certifications.

 

Bill Zittel – I think we are treading in to some new waters here with this scenario with playground equipment and different things.  It was a church and now its being used for childcare.  That’s a good thing for the Town and I am sure it is needed, but it probably wasn’t thought that they would be adding playground equipment and dealing with set backs and such.  I wonder if we need, at some point down the road, to maybe look in to the issue of playground equipment and setbacks.  Maybe we should look a little further in to shrubbery, fencing and/or landscaping buffers.  Unfortunately, I agree, at this point there is not a whole lot that we can recommend unless they are doing something over and above what the previous permit allowed.

 

Mark – Any site plan, drawings, shrubs, buffers etc., would have been part of the process when the Special Use Permit is first issued.  Otherwise they are merely coming in to renew what’s already in place.  Once the Special Use Permit is already approved and comes up for that annual renewal, it’s essentially just a checks and balances, to make sure everything is okay and in compliance.  But there is not really a formal planning function in the renewal process.  If the person wants to make major changes to what they are doing or how they are accomplishing things, then the process should really be started all over again with the site plan, etc.  The Town Board is the granting authority on Special Use Permits and it is up to them to make a determination.  We are a planning body and that is what we do.

 

Mark – Our recommendation is, given the information we have, that the Town Board seek the feedback from the Building Inspector to verify enrollment and compliance with there current permit.  If they wish to expand beyond that, we suggest that they follow the proper procedures.  As far as the Planning Board is concerned, we have nothing to consider as of this juncture.

 

Tower Renewal - The other issues regarding Special Use Permits up for renewal are the towers, the one on the Mammoser property and the other on Weidner property.  Both of the Tower Companies have changed hands.  In the Code there is a section that states that our special permits are “non-assignable” and “non-transferable”.  When that local law was enacted, the intent was to require the operators of such towers, prior to making a transfer, to come in and notify us of the change so that we could verify the viability of the new owner and confirm that they could fulfill the terms and conditions of the permit and so forth.  There are bonds and insurance requirements and things like that to be satisfied.  We didn’t just want them to continually flip the ownership of these facilities over again and again without making these verifications.  It also serves to inform the new owners of their duties and obligations under our code.  So that was the intent.  However, the language does put the owners of the two towers up for renewal in a little bit of a bind.  They are looking for some relief and I believe we have someone here representing the owner of the tower.

 

I am Doug Dimitroff we are representing Tower Co., the tower on Main Street [Weidener], which I believe was approved by this Board in 2001.   Tower Co. is one of the top tower companies now in the country.  They currently own about 370 towers across the country.  Nextel formerly owned this particular tower and we acquired about 90 of its towers in 2005.  As part of that transfer, there were numerous assets and it was presumed that assignment would be a matter of course and that any necessary approval would be included as well.  But when you go in to the details of the Code it is clear that it is a little more involved because not only is approval formally required from the Town for the consent of the assignment but also then there is a renewal process every two years.   Tower Co received a letter in November indicating that the Special Use Permit was up for renewal and to appear in December before the Town Board which we did, on behalf of Tower Co, last week and the Town Board has referred us to you for your recommendation as to those two things, the consent to transfer and renewal of the Special Use Permit.  So we actually put together today a complete package of everything we think you could possibly want and that has been distributed to you.  (Various technical discussion regarding structure, inspections, ownership of the actual antennae by Nextel, etc., is being held among several different people)  But all of that information is included in the packet provided.  I do want to read one thing from Nextel that is in the packet: “We have re-evaluated the RF Divisions of the communications signal at the site, certify that the facility is operating well within the FCC ……… and that was dated 12/18/06.  It appears that there was some question as to whether someone in town received the removal bond last fall.  But we have provided another copy.  There are copies of the assignment documents confirming that Nextel transferred the tower to Tower Co. so you can tie the chain of title.

 

Mark – I think I can clean this up for us with a rather long-winded motion that will serve as our recommendation.  The Planning Board does hereby recommend to the Town Board that Special Use Permits for the former Sprint Spectrum and Nextel communications towers be considered for consent to assignment and transferred to their respective new owners and subsequently considered for renewal with the following conditions:

 

1.                  That the Town Board verify the transfer of ownership of each tower and site;

2.                  Verify the viability of the successor entities to fulfill all the terms and conditions of the special Use Permits;

3.                  That each tower and site is currently in compliance with all terms and conditions of the Special Use Permit;

4.                  That the new owner of each tower and site be required as a condition of the renewed Special Use Permit to acknowledge that they will provide prior written notice to the Town of any such future transfer of ownership interest;

5.                  Payment of all appropriate fees to the Town Clerk.

 

Seconded by Bill Zittel.  All “ayes” motion carried.

 

That recommendation will go to the Town Board so that they will have it for the next meeting on 12/27/06.

 

Mr. Dimitroff – Great, thank you.

APPOINTMENTS:

 

We have our annual recommendations to the Town Board for re-appointment to the Planning Board.  They are Andrew Romanowski for his one-year term as alternate.  I again asked the Town Attorney, Bill Trask, whether we could empower the alternate to be a full member anytime a member of the seven member regular board is missing.  Right know he can only act as a voting member to make a quorum.  But if anyone is missing I feel he should be able to vote as a full member.  Trask advised that the language is pretty clear as to empowering legislation for establishment of Boards but the Town Board may have latitude to modify the composition and authority of the Boards but that may require some action on behalf of the Town Board.  Bill Trask is supposed to follow through with that.  Also my term is up as chairman.  I guess I will continue on for now.   It is therefore recommended that Andrew Romanowski is reappointed for another term as alternate and I will continue for another term as Chairman.

 

REPORTS & ANNOUNCEMENTS:

 

            I need to bring up the matter of attendance.  Last month we had two people here.  Our attendance has been slipping a lot in the last 6 months.  It’s a real problem and it is actually kind of embarrassing when we have people here.  Fortunately, last month we were able to work around it because we had items that did not require a vote.  But, we all signed up to be here and therefore we need to be here.  Everyone has legitimate excuses but please try to be here.   I don’t want to have to send out the “nasty memo”.  That’s it.

 

Bill Zittel - Motion to adjourn.  Seconded by Dennis Bawdy. Meeting adjourned at 7:55.

 

Next meeting will be held on January 30, 2007 at 7:00 p.m.

 

Respectfully submitted,

 

 

 

Dawn Palma