May 13, 1997

MINUTES OF THE REGULAR MEETING OF THE TOWN OF ELLICOTT PLANNING BOARD HELD AT THE ADMINISTRATION BUILDING, 215 SOUTH WORK STREET, FALCONER, NY 14733 ON FEBRU= ARY 11, 2009 AT 7:00 P.M.

PRESENT:= Chairman Dan Evans, Ga= ry Swanson, Phyllis Belin, Paul Shanahan, Steve =

= Peterson, Fred Santucci, Attorney William Wright, Code Enforcement Officer Randy

= Woodbury and Secretary Valerie Pierce

ABSENT: <= /span>Ron Calanni

Chairman Evans opened the meeting at 7:00 PM.

The Board took time to review the minutes of the November 12, 2008 meeting. Attorney Wright had one correction on page 380.<= span style=3D'mso-spacerun:yes'> After the second bullet under Mr. Weisenreder’s review it should say water tributary not waterless tributary. <= /span>

Motion made by Gary Swanson, seconded by Steve Peterson to approve the minutes of the November 12, 2008 meeting with the o= ne correction.

Chairman Evans reopened the Public Hearing for <= st1:State w:st=3D"on">New York RSA No. 3 Cellular Partnership d/b/a Veriz= on Wireless for site plan review for water issues at <= st1:address w:st=3D"on">500 Orchard Rd., W.E., Jamestown, NY.

The Town Engineer̵= 7;s water calculations had been provided to the Board members. The first three pages were basical= ly his review and his recommendations were on the fourth page. There were no quest= ions from the Board.

Robert Burgdorf, attorney for Verizon from Nixon, Peabody LLP, Sandra Brooks, the project manager, and David Weisenreder, pro= ject engineer (Costich Engineering), were present to answer any questions. Mr. Weisenreder specializes in wetlands, drainage and hydrologic issues.

Attorney Burgdorf said that the original special use permit was granted in 1991 and that they have been back every two years for a renewal.&n= bsp; There were no drainage problems reported until 2004 renewal. When that issue was raised Verizon= did a hydrologic and drain study and learned three things:

1)&n= bsp; that Verizon’s drainage system was damaged at that time and needed maintenance

2)&n= bsp; that the preconstruction runoff was virtu= ally identical to the post construction runoff when the drainage system was operating properly

3)&n= bsp; during their investigation they determined that the Town or County’s 18 inch pipe on Idlewood Drive was undersized by a = least 50%

In 2005 Verizon ungrad= ed and repaired the system that had been approved on the site plan and added s= ome additional drainage mitigation efforts to make the system better then originally approved. Mr. Burgdorf said that ended Verizon’s legal obligation. Verizon did following the 2004 renewal, agree, as a good corpor= ate citizen and as a courtesy, to contribute $4500.00 to help the Town solve th= eir drainage problem. The Town ne= ver acted on that and the offer expired. Verizon returned in 2006 and nothing had been done by the Town or the County on the drainage problem. The same discussion was had and the same conclusions were reached. Verizon Wireless, again without any legal obligation, agreed to a $4500.00 contribution to help solve the Town = or County drainage issue. That o= ffer was never acted on. They came= in again in 2008 and it was the same issue.&n= bsp; Costich Engineering did another hydrologic study and came to the same conclusion. This time the Tow= n hired its own engineer, which Verizon encouraged, to review the Costich report. The Town’s engineer conclude= d “the periodic flooding on Gerace’s property is due to inadequate pipe capa= city and trash further reducing the capacity of the closed pipe system”. That is what Costich determined ba= ck in 2004. It notes that the 18 inch pipe is undersized and agrees with the Cost= ich engineering statement that the Verizon Wireless tower is not the primary ca= use of the flooding. It does note= that the tower construction did increase some flow rate. Mr. Burgdorf asked Cost= ich to tell them what that meant as a percentage. Costich Engineering figures it adds= about 4%. The Tolman figures are ab= out 10%. In either event that would not cause the flooding. The problem is, as = both engineering firms have determined, the pipe is 50% undersized. The pipe was installed post construction not preconstruction as stated in the Tolman rep= ort. The Town or County did not install the correct size pipe.=

Mr. Burgdorf said that today Verizon is in full compliance with their site plan and the code. The Town has concluded, the same a= s Costich that the pipe is undersized and at this point Verizon Wireless has no furth= er legal liability with respect to the drainage. He is not saying that Verizon will= not help. They have made the offer twice before but they are in a different financial situation. If the Town does have a proposal a= nd asked Verizon for help it would be without any legal liability or legal requirement to do so. At this= point it is really for the Town to lead this process and decide where it wants to= go.

Dan Evans asked about = the maintenance program on the road up above.&= nbsp; Sandra Brooks said they did have their construction manager look at = it with Mr. Weisenreder to analyze what the issues were. They have a contract with the Coun= ty, whose obligation it was to maintain the road. The County has a key for acce= ss to the tower because they have equipment on the tower. It was part of the agreement with the County for their rent was to maintain the road. Ms. Broo= ks stated that the contract has been in affect since before 2006. Mr. Evans asked Mr. Woodbury if th= e Town should have a copy of the contract and who he contacts if he needs to go up there. There should be a cont= act person.

Dave Weisenreder stated that when they were up to the site in September there were four areas that needed minor touching up. There were two areas with rip rap lined panels and also two areas where there had been some logging operations that had distur= bed some areas. Verizon was waiti= ng to do those things until this process was completely done. Mr. Burgdorf said that because the contract was with the County it should be a matter of public record.

Randy Woodbury said th= at because this did not go through the site plan process he does not have some= of the information that he would normally have such as the contacts. Verizon will provide the contact information and a copy of the contract with the County. He had talked to the Director of P= ublic Facilities and he vaguely remembered this contract. Mr. Burgdorf said that if Randy wo= uld make a list of things he needs, Sandra Brooks could deliver them. Mr. Weisenreder said that Verizon will address the things that were marked on t= he plans. They have not been able to do those because of the weather. Ms. Brooks agreed that it was the = County and their responsibility. Ran= dy thanked Verizon for doing the things that would have been part of the site = plan review that was not done back in 1991.

The October 2008 drain= age report identified the areas that were observed on the September 2008 site walk. There were improvements= that needed to be made:

· the rip rap line channel immediately to t= he northeast of the tower compound area needed to be redefined

· the area that was used for logging operat= ions further to the east before the driveway heads to the northeast – ther= e is an area on the north side of the road that was rutted and drainage was comi= ng back toward the driveway instead of sheeting off

· further to the east on the southeast side= of the section of driveway that runs southwest to northeast that was used for logging operations the swale gets full and does not drain properly

· the rip rap lined channel on the west sid= e of the driveway in the area of the property line needed to be reshaped

Chairman Evans asked R= andy Woodbury to update the Board on projects that may have received funding. Randy is on the Water Quality Task= Force for the County and it is their mission to advise the County legislature on improving watersheds in the County. This particular watershed has been indentified as one that should ha= ve some improvement. Because of = the detention pond built by the Town down stream from Idlewood that collects and maintains water and actually filters the water. This water is already improved. Detention ponds work better in series. Mr. Tolman proposed to improve the drainage and get the water pass the Gerace’s and solve the immediate flooding problem. S= ince 1991, when Verizon came in for the tower there have been Federal regulations passed that everyone including Verizon would have to abided by. The Town and County may have oppor= tunity to partner with some future developers to build a larger detention pond that would divert some of the water coming down Idlewood.

Steve Peterson asked if the increase in the 18 inch drain tile under the road will create flooding = on the other side. Randy said the County DPF Director wanted to make sure the pipe underneath Hunt Road is large enough. Mr. Weisenreder stated that based = in the analysis the 2 ½’ by 3 ½’ box culvert underneath = Hunt Road has a capacity of 102 CFS and currently the 10 year storm tributary to that is around 44 and the 25 year storm is around 60. Mr. Shellhouse told h= im he was not aware of any notable issues down stream of the box culvert. Randy said this will keep the floo= ding contained within a channel that can handle it. This pipe will be a closed pipe co= ming down Idlewood right into H= unt Road. There will be no open drains. Mr. Shellhouse and Mr. Tolman want= to design a big and long enough pipe so it takes the water in quite away up hi= ll from where it does now. They want a series of devices to catch debris so the debris does not become an issue inside the pipe.

Vince Gerace, 381 Hunt Rd., entered into the record a letter dated February 9, 2009 from his neighbor, William Blair, 1 Idlewood Drive, W.E., Jamestown NY, which was in support of an adequate solution of the drainage concerns associated with the western side of Idlewood Drive. He explained that over the last ni= ne years there has been flooding on the Geraces property and he has witnessed their loss of property and water damage to their garage. He said that an engineering soluti= on is needed.

Mr. Gerace did have so= me questions for the Board:

· he wanted to know if there was a statue of limitations on the site plan review - he was told there was none - Dan stated there was no limitation but stated when this tower was constructed the Town did not require the full si= te plan but that it was circumvented – Randy did recommend that Verizon = do a full site plan and Verizon’s attorneys recommendation was not to do t= he full site plan – a compromise was reached with Attorney Wright’s recommendation to do the drainage items on the 28 point checklists – Randy said that Costich has done that – because this Board decided th= at was all that would be required so the statue of limitations becomes mute

· Vince said that he would remind the Board that Verizon has been before the Board and admitted liability and the Town = has also admitted liability – he feels that the site plan should still be done

· Vince has stated that the pipe is undersi= zed and in Mr. Tolman’s report he had offered four potential solutions – one of the four is what the Board is discussing – he would li= ke to see alternative number three, the addition of a detention pond - he added into the minutes, he understands that Verizon did not buy enough property to accommodate a detention pond – he is not opposed to the communications tower as long as the drainage is looked at

· because of his position with the County Sheriffs Department, Vince is aware that the County has agreements with Ver= izon – he is in charge of the technical services division, which helps lau= nch those agreements and he does keep out of that because of his position - he does feel that maintenance means plowing (keeping it clear) and did not believe that meant paving and stonin= g, etc. – Mr. Burgdorf said they will pull the contract and have the Town Attorney and Board look at that contract – they will look into if they need a larger role by the County

· Vince pointed out the document dated 8/14= /09 stated that the amount is $5,000.00 that Verizon would kick in – Ms. Brooks said that they have already paid for the engineering services on and above that they paid $2,000.00 toward the Town’s engineer<= /span>

· He just wanted to point out to the Board = that both the Town and Verizon had admitted liability on the record numerous tim= es – he just wants the problem fixed – he believes that they should hold accountable the mistakes that were made before and get the proper site plan done and go through the proper process

· He request the permit be denied until the proper study is done and the problem is taken care of

Paul Shanahan asked ab= out exhibit 2 of the proposed improvements.&nb= sp; He wanted clarification because he determined fourteen different improvements on the plan. Mr. Weisenreder said that the original plan was f= rom 2004. Those were the improvem= ents that were done in early of 2005. If they look at exhibit 11 those were the ones they indentified in September 2= 008. Those will be done.

Attorney Wright asked = Mr. Weisenreder when they did the walk of the property, one of the things that = was indentified and shows up in both his and Rex Tolman’s reports is that some of the improvements that were done in 2004 which were intended to take drainage and put it back in sheets to slow it down has actually re-channeled itself and is flowing quickly down across the radio station property and th= en across the corner of his property and back out onto Idlewood. Some of those channels have become= quite deep. He wanted to know if th= ey are proposing anything that would remediate that problem.

Mr. Weisenreder said t= hey had not because there had been so much logging that was none of Verizon Wireless’s doing. They = could have the rip rap discharge outlets reshaped to make sure the water dissipat= e but the water has jumped into the logging ruts and created larger swales over t= ime. They are trying to spread the sheet flow. If the property had not been logg= ed it would have more sheet drainage.

Paul asked if there wa= s any more logging being done now. = Attorney Wright said the radio station logged last year. They used the road in the vicinity= of the north side of the driveway as their storage and staging area. That probably resulted in some dam= age to the drainage system and in some rutting.&n= bsp; The channel flow that he referred to was from the logging that was d= one fifty years ago. Mr. Wright purchased the property post logging. If was logged in 2001 or 2002.

Mr. Robert Volk, 395 Hunt Rd., W.E., Jamestown, NY, stated he has owned his home for o= ver 40 years and on and off over the years there have been water problems. There is a tremendous amount of wa= ter coming off the hill. Mr. Volk remembers when the water came right over Hunt Road.<= span style=3D'mso-spacerun:yes'> At this moment he does not have mu= ch of a water problem on his property but if anything is changed up there it will create a big problem. He said the County has a problem there. By the corner= of his property the water comes across from the Gerace property and comes down= the other way because it doesn’t go into the sleuth pipe. It comes down t= he edge of the road so by the time it gets to his property it floods out over.= Mr. Volk did call the County. They did come up and looked at it and said someth= ing had to be done and they were going to fix it for him. He has not seen him a= nd that was a year ago. He does not think that the pipe is big enough. Mr. Volk said that what really created a problem was when the County dug out for the waterline to go to Lakewood.

Gary Swanson asked Attorney Wright since the site plan was never done can the Town requires th= at to be done now? Attorney Wrig= ht said that he does not like to make legal opinions without having done any research but what he would say here, subject to any changes that he would m= ake doing the research on it, is that the site plan portion of the code is triggered by a change in use of land. That change happened in 1991 and if their predecessors made a determination at the time that it did not trigger or for some other reason = they were not going to do the site plan, he thinks that decision was made and un= less there is another change in property that would trigger that site plan again they could not go back and do a retroactive site plan. Gary told Mr. Gerace that the Board wou= ld like to have the site plan but the Town is requiring the drainage issues to= be addressed.

Mr. Gerace added that = the purpose of the special use permit is to review everything every two years to see if there is an impact. It= does have an impact on drainage. A= ttorney Wright said that this is the Planning Board and his answer to Gary’s question on requiring the site plan was no, but it does not mean that they = are exempted from any of the criteria of the special use permit or will they be exempt from coming back every two years.

Mr. Gerace asked if ne= w co-locators would be a change of use. Mr. Burgdorf said their position is that is not a change of use and Attorney Wr= ight agreed.

Attorney Burgdorf stat= ed for the record.

Mr. Gerace said that Verizon has admitted liability. They= have not done so except for the maintenance problems in 2004 that were fixed. Verizon Wireless = has been in compliance with its approval obligation under the original zon= ing approvals. It has no leg= al liability for its 4% or 10% runoff as long as it is compliant with what they were required to do back in 1991. In the items indentified by Costich, their position is that those are above and beyond what was th= eir legal requirement. Veriz= on is happy to do them but it cannot be a reason to deny the special use permit.
The second thing is that the argument was raised that renewal is to see if this has an impact. He believes that case law wou= ld support that is not the purpose of renewal. The purpose of renewal is to = make sure that there is compliance with the conditions of the original zoni= ng approval.
The third point is that the $4500 - $5000 has expired. They = have already paid $2,000 in engineering fees for the Town engineer. He was not saying that Verizon would not come up with the other $3,000 but they would need some reque= st from the Town and Ms. Brooks would submit it. He would recommend that it pr= oceed through the process but he did remind the Board that things that were = easy to approve a year ago are much more difficult to get through corporate today. His recommendatio= n would be that they follow through with that and approve that request. Ms. Brooks said that she woul= d need something to take back to corporate.&= nbsp;

Steve Peterson asked i= f it were true that the Town could not ask if the impact had changed. Attorney Wright said that in the sp= ecial use permit code says that the special use permit criteria are written in th= e Town of Ellicott code that the Board has an ongoing duty to determine that the special use permit is not more objectionable then would the permitted use. The issues of water, noise, vibrati= ons, smoke, odors, traffic and all are subject to review. In addition to that th= ere is a portion of the code that is required for cell towers only:<= /span>

= · Engineering studies

= · Demolition bonding cost=

= · RF studies

Randy Woodbury stated = that Section 146-64 specifies the Town code criteria relative to special use per= mits and their renewals. Mr. Burgd= orf said a lot of the Town code is preempted by State and Federal law.

Randy said that in the= conversation he had with Sandra Brooks, she knows that they paid something towards Mr. Tolman’s fee and the Town paid the other. They have already entered into som= e sort of collaboration toward solving this problem. Dave Weisenreder said that he did = agree with Mr. Tolman’s study within 10%. Ms. Brooks told Randy she thought s= he could ask Verizon for an additional $5,000.

Chairman Evans asked if there is a time frame for Rex Tolman and Highway Superintendent Shellhouse = to do this project. Randy told t= he Board that Sonny would like to build this as soon as the weather permits and Rex is doing the design right now. He had passed on the preliminary offer they had from Verizon. Without the $5,000 Mr. Shellhouse would probably not be able to do the project.

Ms. Brooks said that t= hey go by budgets and last year her manager said she could spend $4,500. She took the $2,000 engineering co= st out of that and the balance was used for other projects. Because it is a new year she has t= o go back and request more money. = She needs to have some reasonableness and finality to this. The two engineers came up with same solution so she has something to go back with. Randy asked if she would be able t= o have an answer by the time the ZBA meets on February 23, 2009. She said she would have an answer = by then. She stated that they do= not own the land so the detention pond is not theirs to give or work with. She has no way of acquiring land.<= span style=3D'mso-spacerun:yes'> They leased land instead of purcha= sing it.

Mr. Gerace stated that= he thought that Attorney Burgdorf was wrong when he stated that Verizon had not admitted liability. He would = really like to see the detention pond added.

Motion made by Gary Swanson, seconded by Steve Peterson, to convene to executive session at 8:15 to take advice from Couns= el.

Carried. = = Ayes -6 = &nb= sp; Noes -0 = Absent -1

Attorney Burgdorf questioned if the executive session did not have to be for pending ligation. Attorney Wright said the Board can always take advice from counsel.

The Board reconvened at 8:30 PM.

Chairman Evans asked if the Board had any more questions. They did not. He asked Verizon if they had any more questions for the Board. They did not.

Mr. Evans said that everything being taken into account, they have the engineering points from = the Town engineer and they coincide with Verizon’s engineer. He said the Board has some recommendations for the Zoning Board:

· The County contract should be provided to= the Town

· Maintenance and the repair of exhibit 11 = that they reviewed last fall

· They need a maintenance schedule for the future if the maintenance is not covered under the County contract

· They should provide a contact person and = keys for Mr. Woodbury – he should visit the site periodically and keep an = eye on these things and bring it back to the Town during the renewal process - = Ms. Brooks said she needs to have someone that could call if there is something that needs attention- she said the County is a good partner

Mr. Evans said if Veri= zon and the Town of Ellicott is going to put a lot of money into the drainage they want to make sure it works.

Motion made by Paul Shanahan, seconded by Phyllis Belin to accept Rex Tolman’s recommendation as to alternative number = four, which was to upgrade the existing closed drainage system on Ildewood and Hu= nt Road (not including Hunt Rd culvert) and improve the closed drainage system pipe inlet to help avoid reduced inlet capacity from trash blockage and depending on the location and depth of the existing gas main this might require a drainage easement from Gerace, on his engineering report. <= /span>

Mr. Woodbury said that Highway Superintendent Shellhouse in committed to doing number four and is having Mr. Tolman design that right now.

Marilyn Gerace asked if they could have a timeline for this. She stated that they are getting flooding right now but the flooding= is not from Idlewood. It is coming down from the property up above. Mr. Wright said that this will not address any of the water they are getting now becau= se it is not coming from Idlewood. Mr. Woodbury has to get the timeline from the Highway Superintendent. It will also depend on some agreem= ent between the Town and Verizon on finances.&= nbsp; The money from Verizon will determine if the Town can do the project fairly quickly. If that is not forthcoming, Randy would not know what the timeline would be. He would like an answer before the= ZBA meeting on 2/23/09, so they could get a timeline. Ms. Brooks said she did need a req= uest for the money before she could get any approval. Randy said that he would have Mr. Shellhouse write a letter requesting the money.

Attorney Wright said t= hat the last time the Planning Board met they had conversations about the properties on North Main Street Extension. The Board was then directed to t= alk to the engineers from Clark Patterson.&nbs= p; Dan stated they have done that and Randy could bring the Board up to speed. Attorney Wright said t= hat Randy, Paul and he had an after meeting conversation with them.

Randy said he thinks t= hat he has had a conversation with Bob Corby (consultant from Clark Patterson) since then and they have developed some ideas. He has also talked to the prosecut= ing attorney for code enforcement because he will be involved with that. To structure a solution for Anders= on and Swanson up there that will not hurt the comprehensive plan is going to take some more work. He does have = some extra tools that he will forward to the Board members called “Green by Design”. They need to h= elp protect or improve the corridors. Randy outlined in length what they were trying to do to improve the corridors. He also told the Board the ideas for= the two businesses on North Main St. Ext.

Attorney Wright said t= hat in their conversation with Bob Corby they talked about the corridors and the protections of the corridors. Mr. Corby said that a typical Town mistake is to forget about the corridors bei= ng an entry to their area. He said under all circumstances you need to protect that and said to Randy he should work on an agreement that would get those businesses out within a three year time.&n= bsp; Basically a non-enforcement agreement where the Town says rather than bringing an action against you to get out, you need to get out over a perio= d of time. The Town would enter in= to an agreement with them. Mr. Corb= y said that the Town absolutely should not allow anything other than what they have there. Paul said that it was = an informal meeting.

Attorney Duncanson said that could not be done legally. Randy brought it back to Mr. Corby and he s= aid that he never meant to imply it would be something like that but something should be established in the code such as a special provision for a special= use permit. They should not create something that is not codified but to put something in the code that can be enforced. Attorney Duncanson is writing a letter to both Anderson and Swanson to offer a process that will state that= he would recommend to the Town Board to prosecute if they are not willing come= for the process.

Attorney Wright said t= hat at this point with the Town Board asking for the Planning Board to look at a potential rezoning and the communication with B= ob Corby that would not be the recommendation from this Boar= d at this time. Randy said they sh= ould also say they are actively looking at that problem. Paul said that in the initial conversation with Mr. Corby he said they presented this to try to find a wa= y to come up with a solution that is good for everybody, both the Town and the businesses. He recommended ag= ainst a light industrial zone but he would suggest a situation with a new special u= se permit. It would allow them to exist the way they are, however there is going to be expiration on that to which they would then have to follow new compliance. Randy said that was an alternative but Attorney Duncanson said that would not work. Attorney Wright said that you can commence an enforcement action against them and in settlement of that you s= et a schedule by which they would come into compliance in the area. Randy said that Mr. Duncanson ulti= mately recommends both. These things= can be happening simultaneously because the comprehensive plan takes time and t= hey cannot just create a special use permit for two parcels. He suggested that maybe that strip= would allow application for special use permit within that particular zone. It would be like spot zoning if th= at were done for just Anderson and Swanson.&n= bsp; Randy and Attorney Duncanson are working on an immediate solution th= ey still recommend that the Planning Board and the Comprehensive Plan Committee look at a broader solution to that corridor. Paul said that he likes the id= ea that they could come up with (and it sounds feasible) a pre-determined legal resolution through the courts (a consent agreement) and he also likes the i= dea that Randy suggests in the “Green by Design” that they can be camouflaged.

Attorney Wright stated that since there is actually 60 days under the code and the last time the Planning Board met was in November of 2008 their recommendation is against a rezoning change at this time and they may want to add information that they= are working on this issue through the comprehensive plan and through design criteria. <= /p>

Randy informed the Boa= rd that the next Comprehensive Plan meeting will be on February 25, 2009 at the Celoron Legion from 3:00 PM to 5:00 PM.&nb= sp; Invitations will go out to the industries and businesses because tha= t is the group the have not heard from.

Motion made by Paul Shanahan, seconded by Steve Peterson not to rezone North Main Street Ext. at this time. The Planning Board will continue t= o work on possible solutions through the comprehensive plan process.

Carried. = &nb= sp; Ayes – 6 &nb= sp; = Noes – 0 = &nb= sp; Absent - 1

Attorney Wright told t= he Board members that the Comprehensive Plan process under the State Law is 10= 0% the responsibility of the Planning Board.&= nbsp; It has not been handled that way but the Planning Board will be invo= lved at some step of the process, which will probably be further along when the = data is gathered and preliminary findings are made. They are starting to compile= the actual comprehensive plan. It= is a process of the Planning Board not the Town Board, Zoning Board, Code Enforcement Officer or the Town Attorney. They will make sure that the Plan= ning Board has sufficient time to review this project. There is also an invitation to the members of the Planning Board to all of the committee meetings.<= /span>

Motion made by Fred Santucci, seconded by Steve Peterson to adjourn the meeting at 9:03. PM.

Carried. = Ayes – 6 = &nb= sp; Noes – 0 = &nb= sp; Absent - 1

&s= hy;_____________________________________= __

Valerie Pierce, Secretary