TOWN OF GAINES
PLANNING BOARD MEETING
NOVEMBER 18,
2011 5:00
P.M
Present: Chairman
Theobert Ahlberg; Vice-Chairman Gary Davy; Members James Theodorakos,
Molly Preston,
Jennifer Stilwell
Guests: Attorney Daniel Spitzer, Constance
Mosher, Carol Culhane, Marilynn Miller, Douglas Syck, Mary Jo Syck, Mary
Neilans, David Allchin, Carol Patterson, Charleen Stillwell, Dale Swindon, Russ
Benzin, Robert Neilans, Maria Neilans, Richard
Neilans, Kathy Kast, David Kast, Walter Jokubowski, Gretchen Sepik
Excused: Member Mike Grabowski and
Christopher Watt
Chairman
Ahlberg called the meeting to order at 5:00 p.m. with the Pledge of Allegiance
to the Flag.
Conditions for
Allchin/Beam Site Plan
On a motion of
Member Stilwell, seconded by Member Preston, the following was
Carried Ayes 5 Ahlberg, Davy, Preston, Stilwell,
Theodorakos
Nays 0
Last meeting the
Planning Board approved the site plan for the Allchin/Beam application;
however, the conditions of the site plan were not mentioned. The conditions are
as follows:
1.
The applicants
will comply with all conditions listed in the resolution prepared by the Town
Attorney for the Town of Gaines Zoning Board.
2.
The applicants
will comply with all New York State regulations, Orleans County Health Code regulations
and Town of Gaines Zoning regulations pertaining to parking and signage.
Connie
Mosher asked/pointed out the following:
First,
there are two copies of the wind laws that have discrepancies between them. The
law filed in Gaines, local law number 1, says “special use” while the same
local law filed in Albany says “site plan review”. Secondly the copy in Gaines
that was passed is 18 pages long and the one registered in Albany is missing the
last 8 pages. Connie believes there was never a
resolution here from the boards to change/fix the discrepancies and that
it is still a matter that should be investigated and settled before any other
wind issues are done.
Chairman
Ahlberg says that the correct version says “site plan” not “special use” and it
was the version passed by the Town Board and sent to Albany. The Town Clerk put
the correct version in the Local Law book in July, the wrong copy that most
people have was being handed out unknowingly. Attorney Spitzer mentioned that
the change from “special use” to “site plan” was made at the very end and the one
he signed that went to Albany was the correct one saying “site plan”. Chairman
Ahlberg also feels this is a Town Board issue not a Planning Board one.
Next
Connie brought up that she spoke with Code Enforcement Officer Bob McGaffick
about the fees submitted for the turbines and he told her that the fee for Watt
and Kast were returned and he could not go on Watt’s property because there was
not a valid permit.
Attorney
Spitzer replied that the board has site plan applications signed by the applicants
and the goal is to do the site plan which is supposed to be the first part of
the process. Collecting fees and issuing
permits is not this boards issue but are issues for the Town Board and Code
Enforcement. A site plan can be done without the permit.
Connie
also spoke about the zone in which Mr. Watt’s turbine is located. He is in a
commercial zone not an agricultural one, so she wonders if he would need a
special use permit, public hearing, and a use variance for being over 80 feet.
Attorney
Spitzer mentioned that the turbine is an exception to the law as it is in a
farming and state-ag district. The turbine being allowed is not a zoning thing
and at no time has Bob McGaffick treated the area as commercial. Attorney
Spitzer spoke with Bob Somers from Ag & Markets and they feel Watt’s
turbine is for agricultural use, not commercial, as the farm itself will be the
main beneficiary of the tower. The tower is on a working farm in a state-ag
district.
Lastly,
Connie mentioned that the September Planning Board minutes say that all the
necessary inspections have been done, but CEO Bob McGaffick did not do them as
he was not allowed on property. She wanted to know who did the inspections.
Chairman
Ahlberg believes the inspections were done by a New York State engineer and
electric was done by National Grid. Last Chairman Ahlberg knew Bob McGaffick
was waiting for copies of the inspections to put in his files. Attorney Spitzer
made note of the fact that many Code Enforcements use outside agencies. Overall
the issue about inspections is not in the Planning Boards jurisdiction but Code
Enforcements and the Town Board and concerns should go before them. Right now
the only issue the Town Board has put before the Planning Board is the site
plan and setbacks.
Marilynn
Miller asked that her time be given to Mary Neilans.
Mary
Neilans lives at the cobblestone home just north of Watt farms on route 98
where her relatives have lived since 1809 and hopefully where her brother’s descendants will live in
the future. They have found the local enjoyable since they have been here for so
long and up to this point have had no quarrel’s with the Town of Gaines. She
was aghast to here in August by the Town Attorney, at a Town Board meeting,
citizens and tax payers had no say in the projects that directly affected their
quality of life, were in large part paid for by tax payer dollars and utility
company funds, and we are in an Ag district, so therefore exempt from usual
check and balances. This seems beyond reasonable and she now believes this is
not exactly the way the Gaines town law should work or was meant to work. She would
suggest that if you are at all aware of the surroundings of where you currently
live and have normal hearing and vision, having a wind energy conversion system
500 feet from your home will negatively affect you. Mary Neilans had a list of
grievances for the board to consider before approving the site plan for
Christopher Watt (she read them aloud and they can be viewed on pages 3-5). She
thinks they will directly affect decisions upon whether the Planning Board
wants a site plan review authorized this evening for Watt or any of the other wind
turbines. These grievances should be taken into consideration by the board when
they are making their decision upon the site plan review because the main issue
is it’s not in their backyard but hers and it definitely affects her life.
Town of Gaines Planning Board c/o Mr. Tibbs Ahlberg 14087 RIDGE ROAD ALBION, NY
14411
Dear Mr. Ahlberg:
I write this letter for the Planning Board's
consideration at its November 18, 2011
special meeting. I understand the Planning Board has convened this meeting to attempt compliance with the Gaines Wind Law
and Zoning Ordinance
relative to a wind turbine on Mr. Christopher Watt's property.
To begin, I bring to the Board's attention what appear to
be various procedural
errors that have occurred relative to Mr. Watt's permit application:
·
First,
and perhaps most obvious, the wind turbine was erected before the Planning
Board's first attempt at site plan review. I believe the Planning Board has
recognized this error and is now attempting to correct it;
·
Second, I
understand that Mr. Watt has not submitted a complete permit application and application fee to Mr. Robert McGaffick,
the code enforcement
officer. Section 1003 of the Zoning Ordinance requires Mr. McGaffick to transmit a complete application to the
Planning Board before the Planning Board can take action. Without a complete
application and receipt of the
fee, the Planning Board cannot legally proceed with site plan review;
·
Third, I
do not believe the Planning Board has completed the General Municipal Law Section 239(m) referral to the County
Planning Board. If this is
the case, the Planning Board's review of Mr. Watt's site plan is a violation of
Section 840 of the Zoning Ordinance;
·
Fourth,
Mr. Watt's wind turbine is not exempt from the special use permit procedures and criteria under the Wind Law. The
exemption from a special use
permit only applies to wind turbines solely used for agricultural purposes. Mr.
Watt's property is used to operate his commercial business. The wind turbine is
actually in a local commercial zoning
district;
·
The fact
that Mr. Watt's property is - as of 2009 -- in a county
agricultural district does not mean
a special use permit is unnecessary. Only when a local law is an unreasonable
restriction on farming can it be determined a conflict with Agricultural and Markets Law. Here, the Wind Law, with its
exemption, does not unreasonably
restrict farming. It just so happens that the exemption does not apply to Mr.
Watt's property because it is utilized for
commercial operations.
·
Fifth,
there is moratorium in place that forbids the review and approval of any permits, with one limited exception that does not
apply to Mr. Watt's wind turbine. The Planning Board's review of Mr. Watt's
site plan is a clear and direct
violation of the moratorium.
I believe that until there is
a resolution through the Article 78 Petition pending in Supreme Court, it is
premature for the Planning Board to take any action regarding Mr. Watt's wind turbine. In
anticipation of the Planning Board decision to nevertheless proceed, I offer
the following information, which must be considered per Section 1004, subparagraphs b(7)
and b(8) of the Zoning Ordinance:
·
The wind
turbine causes extreme noise disturbances. It is worse in early morning, evening and during the night. It disturbs my
sleep. It is similar to
oscillating lug tires of a truck on a wet off-ramp of the thruway. The noise
easily penetrates the 100 plus year old building where I work all day. Occasionally there is also swish-swish noise, which
is softer but equally irritating. There have been reports that cobblestone
walls - such
as mine -- promote the sound waves being retained inside the
structure worse than a traditional
clapboard house.
· The wind turbine noise disturbs my clients and their
animals. The horses and
exotics have been spooked the most. I fear one may rear or bolt if large intrusion of noise comes as I am drawing blood or
some other way in a vulnerable
position. I work on the large animal clientele outside, so I am vulnerable to the environment.
·
Russ has
been a 20plus year member of the Laboratory of Ornithology at Cornell. His observatory is upstairs in the garage, south
bay of windows, which now directly faces the wind
turbine.
· This visual impact is intrusive and disturbing. Any view
to our south is now filled with the wind turbine.
· My property is listed on the Eligible List of National
Historical Properties Registry.
One of the features that makes it such is that all parts of the house are original to the early 1800's
. Maintaining the wavy single-paned windows is one of this registry's recommendations;
thus changes to more sound
efficient windows is
not on the list of possibilities. Virginia Bartos inspected the property in 2011 and finalization
into the national group will take
place in 2012.
·
My
backyard activities are now invaded by the noise of the wind turbine. They include gardening, dog-walking, cross-country skiing,
and picnics. My own dogs,
especially at night, act frightened and run back toward the house. Bike rides
around the block are now accompanied by the droning noise. The wind turbine can be heard on Rt. 279, Rt. 98,
and Bacon Rd through 5
Corners.
·
There are
safety concerns. A blade broke 9 days after installation. According to Dan Sherwood, a retired electrical worker
for National Grid, windmills
in the southern tier, blades have been known to fly off and destroy whatever it lands on. Ice-sling off the blades
is a known problem. How far
will that ice by carried in the wind?
·
Twice I
have seen a strobe-light effect. Both times it was when the sun was low in the sky. This is very distracting, especially
while driving.
·
Our own
horse spends way more time inside his walk in/ out barn when the wind turbine is making noise. Normally he would be
outside grazing on pasture.
The Planning Board should not
act in complete disregard of these most relevant circumstances. If there is any practical alternative to the
placement of the wind turbine that will mitigate these negative impacts, it is
incumbent upon the Planning Board to condition Mr. Watt's permit with the
mitigating measures. It would
be an arbitrary and capricious act to allow the construction of a wind turbine
in a location that causes harm to a neighboring property while a practical alternative exists such that the harm can be eliminated
or reduced.
Thank you.
Dr. Mary Neilans
In
regards to some of the issues brought up by Mary Neilans, Attorney Spitzer said
that NY state legislature has said farm operations are largely exempt and it is
them who make up the rules not the Town Board. According to section 239m the
site plans were submitted to the County Planning Board and they waived their
review (informing Gaines by letter); the Gaines Planning Board has done their
part. When reading the exemption language, it doesn’t mention zoning districts
at all; it says if you are in an agricultural district you get an exemption. The
location in a commercial zone is irrealvant.
Chairman
Ahlberg noted that Watts Farm Market is operating under Ag & Markets rules.
Also,
the law does not look at setbacks from buildings, but rather setbacks from
property lines which are what the Planning Board is reviewing.
Dave
Allchin asked about health and safety and expressed his concern about the noise
of the wind turbines. He was curious about how much research went into making
their decision. Member Stilwell stated that lots of research was done in making
the laws and the Planning Board is here to enforce laws that were created.
Attorney Spitzer agreed with Member Stilwell, saying that the Planning Board interprets
the law from the Town Board and there are limits to what they can do and the
Town Board can only do what is allowed within the States laws, this is a right
to farm state. He also remarked that unfortunately there was a mix up, but the
Town cannot say no-one can build a wind turbine because of it. The towers met
the correct setbacks and there were no health and safety concerns brought up
when the tower was put up. This board can only consider the site plan.
Enter
Executive Session
On
a motion of Member Preston, seconded by Member Theodorakos, the following was
Carried Ayes 5 Ahlberg, Davy, Preston, Stilwell,
Theodorakos
Nays 0
The
board will go into executive session at 5:39 pm for legal matters and to talk
with Attorney Spitzer.
Exit Executive
Session
On a motion of
Vice-Chairman Davy, seconded by Member Preston, the following was
Carried Ayes 5 Ahlberg, Davy, Preston, Stilwell,
Theodorakos
Nays 0
The board will
leave executive session and resume the regular meeting at 6:36 pm.
TOWN OF GAINES
PLANNING BOARD MEETING
NOVEMBER 18,
2011 5:00
P.M
Kirby: Resolution
Issuing a Negative Declaration of Environmental Significance
On a motion of
Vice-Chairman Davy, seconded by Member Stilwell, the following was
Carried Ayes 5 Ahlberg, Davy, Preston, Stilwell,
Theodorakos
Nays 0
The following
Resolution was passed:
Resolution of the
Issuing a Negative Declaration of Environmental Significance
For the Proposed
WHEREAS, the Town
WHEREAS the
NOW, THEREFORE, BE IT RESOLVED by Town
1. The Board finds the proposed wind tower will not have a significant adverse impact on the environment. The tower installation requires a very minimal impact on land and no impact on water or groundwater resources. The turbine is an as of right use on a farm if up to 120 feet tall, and the marginal increase in height, necessary for the operation of the turbine, does not present a significant visual impact, nor does the tower itself, as wind turbines are typical uses on agricultural properties. Noise levels and tower falling concerns are mitigated by the required setbacks, and noise levels are typical of agricultural operations.
2. This Resolution is effective immediately.
PASSED AND ADOPTED the 18th day of November 2011.
In regards to all of the site plan approvals it’s the understanding of the board that the 140 foot refers to the height of the tower but the board has also considered that there is a 12 ˝ foot blade that goes above that, the board is aware of what the total height is.
TOWN OF GAINES
PLANNING BOARD MEETING
NOVEMBER 18,
2011 5:00
P.M
Kirby: Resolution Approving
the Site Plan For the Proposed Wind Tower
On a motion of
Vice-Chairman Davy, seconded by Member Preston, the following was
Carried Ayes 5 Ahlberg, Davy, Preston, Stilwell,
Theodorakos
Nays 0
The following
Resolution was passed:
Resolution of the
Approving the Site
Plan For the Proposed
WHEREAS, the Town
WHEREAS the
NOW, THEREFORE, BE IT RESOLVED by Town
1. The Board waives any part of the application required by Section 1003 of the Zoning Code not submitted because the site plan required herein is under an exemption for wind turbines in the Code on farms, except for turbines over 120 feet. The exemption only imposes one requirement, that of a setback from property lines, and the additional information is not required to review this application.
2. The Site Plan is approved because
a) there is no impact on vehicular traffic or pedestrian traffic, nor does the application involve off-street parking, storm water and drainage facilities, water or sewer facilities. It does not interfere with emergency access or involve solar access.
b) No landscaping is necessary.
c) The separation of the tower from the property line by the distance required by the setback adequately protects the neighboring properties from impacts, including noise and visual impacts
3. This Resolution is effective immediately.
PASSED AND ADOPTED the 18th day of November 2011.
TOWN OF GAINES
PLANNING BOARD MEETING
NOVEMBER 18,
2011 5:00
P.M
Vice-Chairman Davy reclused himself from
discussion and voting on all resolutions regarding David Kast.
Kast: Resolution
Issuing a Negative Declaration of Environmental Significance
On a motion of Member
Stilwell, seconded by Member Preston, the following was
Carried Ayes 4 Ahlberg, Preston, Stilwell,
Theodorakos
Nays 0
The following
Resolution was passed:
Resolution of the
Issuing a Negative Declaration of Environmental Significance
For the Proposed
WHEREAS, the Town
WHEREAS the
NOW, THEREFORE, BE IT RESOLVED by Town
1. The Board finds the proposed wind tower will not have a significant adverse impact on the environment. The tower installation requires a very minimal impact on land and no impact on water or groundwater resources. The turbine is an as of right use on a farm if up to 120 feet tall, and the marginal increase in height, necessary for the operation of the turbine, does not present a significant visual impact, nor does the tower itself, as wind turbines are typical uses on agricultural properties. Noise levels and tower falling concerns are mitigated by the required setbacks, and noise levels are typical of agricultural operations.
2. This Resolution is effective immediately.
PASSED AND ADOPTED the 18th day of November 2011.
TOWN OF GAINES
PLANNING BOARD MEETING
NOVEMBER 18,
2011 5:00
P.M
Attorney Spitzer wanted to clarify that the Planning Board
is not judging the building permit, the accuracy of the permit or if it should
be issued, they are only looking at the site plan. If people have concerns this
is not the body to be talking to and if they question the legality of the
building permit and have other issues they should be directed to the Town Board
and Code Enforcement.
Kast: Resolution
Approving the Site Plan For the Proposed Wind Tower
On a motion of Member
Preston, seconded by Member Stilwell, the following was
Carried Ayes 4 Ahlberg, Preston, Stilwell,
Theodorakos
Nays 0
The following
Resolution was passed:
Resolution of the
Approving the Site
Plan For the Proposed
WHEREAS, the Town
WHEREAS the
NOW, THEREFORE, BE IT RESOLVED by Town
1. The Board waives any part of the application required by Section 1003 of the Zoning Code not submitted because the site plan required herein is under an exemption for wind turbines in the Code on farms, except for turbines over 120 feet. The exemption only imposes one requirement, that of a setback from property lines, and the additional information is not required to review this application.
2. The Site Plan is approved because
a) there is no impact on vehicular traffic or pedestrian traffic, nor does the application involve off-street parking, storm water and drainage facilities, water or sewer facilities. It does not interfere with emergency access or involve solar access.
b) No landscaping is necessary.
c) The separation of the tower from the property line by the distance required by the setback adequately protects the neighboring properties from impacts, including noise and visual impacts
3. This Resolution is effective immediately.
PASSED AND ADOPTED the 18th day of November 2011.
TOWN OF GAINES
PLANNING BOARD MEETING
NOVEMBER 18,
2011 5:00
P.M
Vice Chairman Davy will now participate in discussion and voting again.
Member
Stilwell stated that she feels it’s unfortunate that these issues have been
dropped in the Planning Boards laps and she sympathizes with Dr. Neilans. While
looking for another option to place the tower on Watt’s property she can’t see
where it could be moved to.
Watt: Resolution
Issuing a Negative Declaration of Environmental Significance
On a motion of
Member Preston, seconded by Vice-Chairman Davy, the following was
Carried Ayes 4 Ahlberg, Davy, Preston, Stilwell
Nays 1 Theodorakos
The following
Resolution was passed:
Resolution of the
Issuing a Negative Declaration of Environmental Significance
For the Proposed
WHEREAS, the Town
WHEREAS the
NOW, THEREFORE, BE IT RESOLVED by Town
1. The Board finds the proposed wind tower will not have a significant adverse impact on the environment. The tower installation requires a very minimal impact on land and no impact on water or groundwater resources. The turbine is an as of right use on a farm if up to 120 feet tall, and the marginal increase in height, necessary for the operation of the turbine, does not present a significant visual impact, nor does the tower itself, as wind turbines are typical uses on agricultural properties. Noise levels and tower falling concerns are mitigated by the required setbacks, and noise levels are typical of agricultural operations.
2. This Resolution is effective immediately.
PASSED AND ADOPTED the 18th day of November 2011.
TOWN OF GAINES
PLANNING BOARD MEETING
NOVEMBER 18,
2011 5:00
P.M
In
regards to voting on Christopher Watt’s site plan, Member Theodorakos believes
there are valid concerns which may not necessarily be the Planning Boards call,
but he is not comfortable voting in favor of approval with the concerns that
are out there.
Watt: Resolution
Approving the Site Plan For the Proposed Wind Tower
On a motion of
Vice-Chairman Davy, seconded by Member Preston, the following was
Carried Ayes 4 Ahlberg,
Davy, Preston, Stilwell
Nays 1 Theodorakos
The following
Resolution was passed:
Resolution of the
Approving the Site
Plan For the Proposed
Town of
WHEREAS, the Town
WHEREAS the
NOW, THEREFORE, BE IT RESOLVED by Town
1. The Board waives any part of the application required by Section 1003 of the Zoning Code not submitted because the site plan required herein is under an exemption for wind turbines in the Code on farms, except for turbines over 120 feet. The exemption only imposes one requirement, that of a setback from property lines, and the additional information is not required to review this application.
2. The Site Plan is approved because
a) there is no impact on vehicular traffic or pedestrian traffic, nor does the application involve off-street parking, storm water and drainage facilities, water or sewer facilities. It does not interfere with emergency access or involve solar access.
b) No landscaping is necessary.
c) The separation of the tower from the property line by the distance required by the setback adequately protects the neighboring properties from impacts, including noise and visual impacts
3. This Resolution is effective immediately.
PASSED AND ADOPTED the 18th day of November 2011.
TOWN OF GAINES
PLANNING BOARD MEETING
NOVEMBER 18,
2011 5:00
P.M
Attorney
Spitzer will forward a copy of the approved resolutions to the Town Clerk and
notify the County Planning Board and Town Board so that they can proceed as
they see fit.
With
no further business on a motion from Member Stilwell, seconded by Vice-Chairman
Davy the meeting is adjourned at 6:49 P.M.
Respectfully Submitted,
________________________
Mary
Pettit
Secretary,
Planning Board