City of Auburn Planning Board
Tuesday, May 6, 2008, 6:30 PM, MEMORIAL City Hall
Present: Christopher DeProspero, Anthony Bartolotta, John Breanick, Brian Halladay, Sam Giangreco, Allen Zentner, Mark DiVietro
Staff: Stephen Selvek, Planner; Brian Hicks, Sr. Code Enforcement Officer; Andy Fusco, Corporation Counsel;
Absent: Tom Week, APD
The Chair called the meeting to order. The Pledge of Allegiance was recited.
Agenda Item 1: Minutes of April 1, 2008.
Chair asks for a motion to approve the minutes. Motion made by John Breanick, seconded by Anthony Bartolotta. All members vote approval. Motion carried.
Agenda Item 2: Application for Minor Subdivision for the purpose of subdividing a vacant 6.654-acre residential lot from an existing parcel located at 102 N. Lewis Street. The remaining 0.698-acre portion would consist of an existing residential home. Applicant: Lewis E. Springer II
Chair states the public hearing is carried over from last month and still in effect.
Lew Springer, applicant – the original contract was just to purchase the 6 acres of land. He was notified by staff that an access road was required which was then negotiated with the seller. There are no other requests at this time except for the subdivision.
Sam Giangreco – questions Counsel that since there was a quorum at the last meeting and a vote was taken that even though it was deadlocked why are we here this evening?
Andy Fusco – there was a legal question as to the meaning of the 2-2-1 vote for a SEQR negative declaration and the fact that there was no motion for a positive declaration. We are here to resolve unfinished business.
Sam Giangreco – we took a vote and that should stand. The matter is closed and the project killed.
Andy Fusco – you did not get the required four votes majority. It does not end the SEQR review. Also, there was no vote for a positive declaration. The applicant asked at that time if he needed to instigate an Environmental Impact Statement which he would have if a pos dec had been declared. Some type of vote on a pos dec was asked for but there was no motion and no vote. The SEQR process is not completed. We need to do this first to satisfy the regulation before the project is killed.
Sam Giangreco – do we need to take the vote again?
Andy Fusco – you need to do something. You need to not leave the situation unresolved. Now that there is a full Board here the vote would be different. You are obligated to do all that can be done to satisfy SEQR and therefore not leave yourselves open to an Article 78 review. The positive declaration has not been exhausted. I personally would like to see the possibility of a neg dec vote revisited. You need to start from scratch and get through the proper SEQR process.
Sam Giangreco – we had no prior knowledge last time that Board members would be missing. What of the future if this same situation arises? Will this set precedent? We need to have all members present at every meeting then.
Andy Fusco – point understood. As the Chair you are in charge of the rules of order. If your decision on a neg dec is that it has been decided on then I will defend the decision. However, the issue of a pos dec has not been reached. If you are deadlocked on a neg dec and never reached the issue of a pos dec then fairness would dictate a revisit of the SEQR issue tonight. SEQR is unresolved. My advice is to start anew.
Sam Giangreco – with respect to everyone here we had a quorum at the last meeting, we took a vote, we’ve now had a few weeks to discuss it. I don’t think it would be fair to bring it all back up. We took a solid vote last time and it should stand as is. The project is killed.
Andy Fusco – no, you can rightfully say you have resolved the possibility of a neg dec and will not allow it to come to the floor again. However, on the other side, the positive declaration decision is not resolved. What must happen if there is not a negative declaration decision then you need to explore the potential of a positive declaration. If you say the project is killed now it may not stand up in an Article 78 review and then the Board would be ordered to start again and make a decision of a positive or negative declaration. Since ½ of the SEQR process has not been addressed or resolved it has to be done. If you follow instructions and address that part then what is the harm of addressing it all and revisiting the possibility of a negative declaration?
Sam Giangreco – I have never heard of this situation and I have to go with my gut feeling and the previous vote should stand.
Andy Fusco – even if the negative declaration was defeated by a majority vote you would still need to ask for a vote on a positive declaration. Voting against a negative declaration does not stop the process. It does not matter what order it is voted in, whether pos dec or neg dec is decided on first, both have to be considered and voted on. The only reason a neg dec is presented first here is that DRC and staff have recommended the negative declaration to be passed. You are mandated by SEQR regulations to do all you can do and you have not done so at this point. The process needs to be completed.
John Breanick – I have served in the past as chair. Auburn is in a unique position. Any other municipality would require an LMN39. Because we have professional staff and Counsel we do not have to do that. We have had staff, the DRC and Counsel look at this and forward their advice and recommendations. We need to put it back up for a vote. It is only fair to do so.
Lew Springer – I don’t think anyone is going to be hurt by this decision. There is no project on the table at this time.
Andy Fusco – we heard that the 60 foot strip means something. That’s true, it creates a concern to many. Were the strip not there then it would be viewed differently. If a site plan were available the Board would not be asked to vote in a vacuum. They would know what you are not asking for a use change or actual street to be installed at this time. My clients are saying that they are not letting the ultimate use lie with a decision by the ZBA or City Council that they have no control over. Were they to approve a subdivision with residential improvement in mind there would probably be no problem. But then what if the ZBA or Council gives relief for some type of undesirable project? We don’t know what is actually going to be done there. Gives problems with a previous similar case as
an example. I would like my client to know what the developer intends to do with the property.
Lew Springer – initially it was to be 6 acres left vacant but because the City stated I can’t have a landlocked lot I needed to negotiate a route over property I did not own or buy it. This was revisited with the seller and the 60 foot strip was added to the proposed purchase. The only reason I am buying this is because of my involvement with Mr. Flummerfelt. He also has a large piece of residential property next to this and it would be harmonious with what we are involved in. We are not “up to” anything. I am frustrated over the concerns voiced.
Andy Fusco – I have actually gone out and stared at that property wondering about the access and trying to figure out what to do. I will take the time necessary to do this.
Lew Springer – what is the relation to the ZBA? You mentioned 2 boards.
Andy Fusco – there are actually 3, this Board, the ZBA and City Council. Council could always take a vote to rezone the area. There are a myriad of the type of uses that can be done on this property. The ZBA could also award a variance.
Lew Springer – so you are asking this Board to pre-empt the other authorities.
Andy Fusco – now don’t be putting words in my mouth.
Helen Brown, N. Lewis St. – confused with what’s going on. The bottom line is that the people are afraid of something other than a residential use being developed. He just said it would go with other properties on Grant Ave. I question what is really going on.
Charles Flanagan – questions the access. You said you went back to Mrs. Potter about it but it was on the map at the last meeting.
Andy Fusco – clarifies that the 60 foot strip was negotiated before coming to the Board.
Stephen Selvek – Planning staff had been approached about 3 months ago and prior to the first presentation of this to the Board and the applicant was told at that time he was required to provide street access. Again, this was done prior to the last meeting and therefore shown on the map.
Charles Flanagan – no one believes anything you (Mr. Springer) say. Why don’t you say what your purpose is?
Lew Springer – we are trying to market the property on Grant Ave. Mr. Flummerfelt owns about 6 acres of residential property behind his commercial property. Mrs. Potter owns this 6 acres. The combination of the 2 is more appealing. But at this time we have no plans for the property. It is for the future development of someone else.
John Breanick – since Mr. Fusco has already stated he wouldn’t get into a debate about the details and I feel this conversation is headed in the same direction it should be stopped.
Sam Giangreco – so it’s down to the decision to reconsider a positive declaration or let the Courts take it?
Andy Fusco – yes, if there is no action toward a positive declaration I will reserve what I have to say at this time.
Sam Giangreco – I am staying with my previous decision. Let it go to the Courts if that’s how that applicant wishes to proceed. I think it’s a complex issue and want to be fair. A 3rd party should decide.
Andy Fusco – the Courts will not make the decision for you. It will send it back with an order for the Board to make the decision.
Sam Giangreco – I will stick to my beliefs at this time.
Andy Fusco – you are saying that you will not allow any motions even though that is fraught with risks?
Sam Giangreco – I gave this a lot of thought and think it was sufficiently done at the last meeting. I think this is the best avenue to take even knowing it could come back to this Board.
John Breanick – form a legal standpoint can the Board over rule the decision of the Chair?
Andy Fusco – it would be impolite and I wouldn’t end run the decision even though I might disagree with it.
Sam Giangreco – where does it go from here?
Andy Fusco – as I understand this you are saying that as the Chair of the Planning Board you will not entertain a motion or a second for a positive declaration nor a motion or a second for a negative declaration, the vote of which was deadlocked last month. And in your opinion you are not able to complete SEQR and cannot reach the merits of the project and said project is defeated.
Sam Giangreco – that is correct.
Sam Giangreco – makes a motion to adjourn. Seconded by Christopher DeProspero. Opposed by John Breanick.
John Breanick – thinks this should be voted on tonight in all fairness as it was stated in the last meeting that it would be resolved at this meeting and the Public Hearing was kept open for that reason.
Sam Giangreco – asks for the adjournment vote again. All expect John Breanick vote approval. Chair states meeting is adjourned.
John Breanick – point of order. Roll was never called and should be done.
Roll is called. All members are present.
Next meeting is Tuesday, June 3, 2008 at 6:30.
Recorded by Alicia McKeen
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