City of Auburn Planning Board
Tuesday, June 3, 2008, 6:30 PM, MEMORIAL City Hall
Present: Anthony Bartolotta, John Breanick, Brian Halladay, Allen Zentner, Mark DiVietro
Absent: Sam Giangreco, Christopher DeProspero
Staff: Stephen Selvek, Planner; Andy Fusco, Corporation Counsel;
Absent: Tom Week, APD; Brian Hicks, Sr. Code Enforcement Officer
John Breanick is the acting Chair for this evening.
The Chair called the meeting to order. The Pledge of Allegiance was recited.
Agenda Item 1: Minutes of May 6, 2008.
Chair asks for a motion to approve the minutes. Motion made by Allen Zentner, seconded by Anthony Bartolotta. All members vote approval. Motion carried.
Agenda Item 2: Request from the City of Auburn City Council to act as Lead Agency for the State Environmental Quality Review of the proposed Landfill Gas Electric Generator and Anaerobic Digester Energy Facilities to be located adjacent to the City’s wastewater treatment plant on 35 Bradley St.
Chair invites the owner or agent to speak.
Kamyar Zadeh – the project involves construction of a 3 megawatt renewable energy plant at the wastewater treatment facility. Of that 2 MW is powered by the landfill gas accumulated at the landfill and the other MW is going to be produced by the biogas that is the result of anaerobic digestion of sludge that will be produced by the City and also brought in from other areas. The City has been asked to act as Lead Agency for this project. The documentation has been prepared and reviewed by S & W Engineering Co, reviewed by the City Attorney Ginny Robins, and has been submitted for approval.
Chair – asks public for comments even though it is not a public hearing. There being none asks staff for comments.
Stephen Selvek – (distributes resolution and draft of letter) Assuming the Board adopts the resolution, a letter will go to the CM regarding this matter. This is a Type I action under SEQR as defined within our zoning code. Involved agencies include Council, Planning Board as well as DEC. In this case the City Council wishes to act as Lead Agency for SEQR review. What they are looking at is the full EAF to determine if there are any possible adverse effects. They are asking the PB to approve their desire to act as Lead Agency & for the Board to provide any comments pertinent to the EAF as presented. With regards to the comment portion of it, staff has reviewed it, corporation counsel has prepared a memo attached to the SEQR resolution outlining comments staff had. The first deals with the description of
the action on page 3, essentially CH Auburn who is the consulting company for this project, has indicated they are the ones undertaking the project but it is actually a joint venture between the City & CH Auburn to complete the bio-digester project.
Kamyarh Zadeh – CH Auburn is actually the owner of the facility. The energy services agreement between CH Auburn, which is a subsidiary of Central Hudson Ent., & the City of Auburn is the facility will be owned and operated on leased property at the waste water facility by CH Auburn and this agreement continues for 15 years at which time it will be transferred back to the City in terms of ownership.
Stephen Selvek – answer 25 in the EAF is the portion that lists each of the involved agencies and the approvals needed. This particular portion should be augmented to include the various approvals, which Council needs to undergo, including lease of the land, connection to City utilities, etc. The 3rd comment from Staff is that once SEQR is completed the City should, by written resolution, reconfirm & ratify the prior resolution to lease the land for the bio-digester. Technically this lease should have been done following SEQR & should be brought back & done again. Finally, the 4th comment is to note that in the resolution that Council passed on May 22nd, they referred to this as an unlisted action when it is in fact a Type I action per our City code. These are
the comments that Staff plans to provide to Council via the Manager for consideration of the full EAF. Staff recommendation is to allow Council to act as Lead Agency and by this resolution to direct Staff to provide these comments to the Manager.
John Breanick – asks for any further comments or questions. Will entertain a motion to accept the resolution to give Council the ability to review SEQR. So moved by Brian Halladay, seconded by Mark DiVietro. All members vote approval. Motion carried.
Chair asks for any other matters that may be reviewed.
Andy Fusco – has met with Mr. Springer, the manager and the mayor. There is one discrepancy of fact Mr. Springer seems to recollect that I don’t recall myself and would like to clarify that. Regarding the proposed Lewis St. subdivision, I recall a motion and a 2nd for a negative declaration on SEQR which was voted upon 2-2-1, which I think we will all agree upon. Then I seem to remember that the Chair asked for a motion for a positive declaration, the motion was made but did not receive a second. I’ve spoken with Stephen Selvek and others about this but they don’t remember it that way and I would like to clarify this now before we go further.
John Breanick – I believe your recollection is correct on that in regards to the negative declaration. I think the motion for a positive declaration was made by Mr. Giangreco. We have a tape of this, what did that say?
Alicia McKeen – the minutes reflect what was said on the tape.
John Breanick – do we have a copy of those? Can we recess while a copy is retrieved?
Andy Fusco – yes, I’d like to resolve this tonight.
John Breanick – calls for 5 minute recess.
John Breanick – meeting reconvenes.
Stephen Selvek – the Board now has a copy of the minutes pertaining to the event in question. I did listen to the audio file specific to this portion of the discussion before coming back down. The Chair had asked for a motion to be made but no motion was made by anyone at that point. At that time Andy began giving the board what options they had for moving forward.
John Breanick – asks Andy Fusco if he’s reviewed the minutes in question. Is that how you remember it?
Andy Fusco – no but I will trust in Steve’s review of the recording. By the way I think it would behoove us to ask Mr. DeProspero if he did indeed make a motion that just may be inaudible on the recording.
Lou Springer – has been here before on a proposed subdivision on Lewis St. and has, so far, not received any notice on any action on it. Has decided to come tonight in the chance the Board wishes to discuss the matter. There is no planned agenda but I am disappointed matters ended up this way and wonder if there is anything talk about.
John Breanick – I ask Corporation Council that if the minutes are reflective of what’s been presented – there has been neither a positive nor a negative declaration so what are our options?
Andy Fusco – tonight our options are nil. It would be unfair to make any substantive decision tonight without other interested parties being here. From a legal standpoint it’s important to make a determination of that one fact in question. It may not change any outcome but we need to ascertain what happened. I will give legal advice then. I also have a letter from your attorney, Mr. Barry, that I will hold off on responding to also until this matter is settled.
Lou Springer – I would also like to state that my purchase offer for this expires June 15th so I am under that pressure to have this resolved. The seller is a bit difficult & I feel I am in a box here. There is a provision in the law called Default Approval. I would like not to take that but if I can’t negotiate a stand-still or extension of the contract with the seller I don’t think I’ll have an option but to do that. I don’t like to do that as it’s not a cooperative thing to do but more adversarial.
Andy Fusco – it is also fraught with risk. And it may be legally improper. I will attempt to discuss with your attorney is that the default period does not begin to run until SEQR has been completed.
Lou Springer – I am aware of that. But you have 30 days to complete SEQR which was not done and has been defaulted as well.
Andy Fusco – well there isn’t a compounding of defaults. Reviews the law for the Board. However that default provision in the law does not begin to run until SEQR is complete and I think we all agree that SEQR was not completed.
Lou Springer – I’m aware of that but SEQR, by law, was supposed to be completed in 30 days and at the next meeting the Chair declared that SEQR was completed.
Andy Fusco – that may be a question of law that has to be resolved. And you can bring action to resolve that and we will live with the results. If you have to come back and re-decide this then we’ll do that. The Chair’s posture was that under regulations if you fail to complete SEQR it is considered denial of the merits. In either event, if a positive dec motion was declared, theoretically SEQR is completed and it’s a denial of the merits so the default provision does not apply. If there was no motion made then SEQR was not completed and the default statute does not begin as SEQR has not been completed.
Lou Springer – will have to decide the risk factors involved and go from there. Will meet with seller and see what she says about an extension. What guidance can you give? In the politics of the Board is this something that can be re-considered at some point in the future?
Andy Fusco – I’d want to cross that bridge when I come to it. We never reached the merits of the project, we got hung up on procedure and technicalities.
John Breanick – asks if an Article 78 was filed could the Chair still refuse to bring it before the Board?
Andy Fusco – that would be contemptuous. If an Article 78 is filed & the case is remanded back with an order to make a decision and it is not done…I wouldn’t want to be the defense attorney in that case.
John Breanick – would it be grounds for removal of the Chair at that point?
Andy Fusco – I won’t even go there. Let’s see what Mr. Springer will do next first.
Lou Springer – concerning reapplication. Asks Stephen Selvek his thoughts on the matter.
Stephen Selvek – with regards to reapplication it is my understanding that a failed application cannot be brought back to the Board in the same format. Application by a new party could be brought back. In regards to the Board’s position on this, it’s the Board’s position. Staff had provided a recommendation for a negative declaration and approval of the minor site plan and Staff was, quite frankly, taken out of the equation. So this rests with the Board.
John Breanick – so where there’s a dereliction of duty and prejudices is there any way this Board can rectify the situation in those circumstances?
Andy Fusco – not tonight in fairness. The other party is not here heard & I’m sure he’d like to be heard.
Lou Springer – the Chair didn’t care to hear his Board members.
Andy Fusco – this is getting argumentative. I understand your point, you’ve heard what I’ve had to say. This was not on the agenda, it’s not been advertised, interested parties are not here so it really isn’t fair to make any decisions.
John Breanick – any other matters? Will entertain a motion to adjourn. So moved by Mark DiVietro, seconded by Anthony Bartolotta. Meeting adjourned.
Next meeting is Tuesday, July 1, 2008 at 6:30.
Recorded by Alicia McKeen
| 
