REGULAR TOWN BOARD MEETING OCTOBER 5, 2010
A regular Meeting of the Town Board of Guilderland was held at the Town Hall, Route 20 McCormick's Corners, Guilderland, NY, on the above date at 7:30 pm. The meeting was opened with the Pledge of Allegiance to the flag. Roll call by Rosemary Centi, Town Clerk, showed the following to be present:
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Councilman Redlich |
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Councilwoman Slavick |
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Councilman Pastore |
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Councilman Grimm |
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Supervisor Runion |
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ALSO PRESENT: |
Richard Sherwood, Town Attorney |
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Supervisor Runion welcomed everyone to the evening’s meeting and asked for a motion accepting the minutes of the September 21st, 2010 Town Board meeting.
MOTION #149 Councilwoman Slavick moved to ACCEPT THE MINUTES OF THE SEPTEMBER 21st, 2010 TOWN BOARD MEETING. Councilman Pastore seconded the motion and it was carried by the following roll call vote:
Councilman Redlich |
Abstained |
Councilwoman Slavick |
Aye |
Councilman Pastore |
Aye |
Councilman Grimm |
Aye |
Supervisor Runion |
Aye |
PUBLIC COMMENT PERIOD – No public comment
PUBLIC HEARING:
7:30 PM – Local Law amending the Zoning Law re: Home Occupations and Mixed Use Development
Town Clerk, Rosemary Centi, read the legal notice.
KenBrownell, Chair of the Zoning Review Committee, gave a brief synopsis of the proposed change to the law.
He stated that there was a change in the definition for “Shopping Centers, as well as putting in a definition for Mixed Use building and a Home Occupation category.
He further stated that they tried to bring the current zoning law into the 21st century, taking into account that there were a number of small home-based businesses.
The committee also tried to come up with a definition of shopping center in order to address the situation with Crossgates Mall.
The Committee also submitted a memorandum outlining the changes. (P 106A)
Supervisor Runion stated that at the board meeting that set the public hearing, the Town Board modified one section of the proposed local law regarding the shopping center, super regional definition deleting “shopping center where the combined total of all such business and service uses has a gross floor area exceeding 250,000 square feet.”
The final local law that was presented to the Town Board.
Charles Klaer, Meadowdale Road stated,
“Before commenting on the proposed amendment to the Zoning Code related to Home Occupation and Mixed Uses, let me suggest that since the Public Notice for this Public Hearing fails to give the public notice that the redefinitions to Designed Local Shopping Center; Designed Neighborhood Shopping Center; Designed Regional Shopping Center and Designed Shopping Center would be included as an agenda item, I suggest that without renoticing these items they should not be included in this evening discussion.
The introduction to the Law states in:
SECTION I. PURPOSES AND FINDINGS
The Town Board established a Zoning and Land Use Review Committee to make recommendations regarding amendments to Chapter 280 of the Town Code. As part of its review, the Committee proposes the following amendments which will accommodate mixed-used buildings that allow both residential and commercial uses, allow a combination of uses in the local business district, and streamline the review of home occupations. The Town Board finds that these amendments will serve the following purposes:
(1) Promote economic development and further enhance the quality of life of Town residents;
(2) allow a mixture of complimentary uses to create economic and social vitality and to encourage the linking of trips;
(3) Provideflexibility in the siting and design of new development and redevelopment; and
(4) Facilitate development that supports public transit and encourages bicycle and pedestrian access.
The Town Board finds that these amendments are consistent with the Comprehensive Plan, and the studies promulgated there under, and are beneficial to the general welfare of the citizens of the Town of Guilderland.
I attended most sessions leading to the approval of the Comprehensive Plan. I was interested in reviewing the various web - based documents related to the Comprehensive Plan to determine just how consistent the proposed Zoning Amendments were with the recommendations in the various documents.
My interest was not simply based on personal curiosity because once a Town approves a Comprehensive Plan by law all Town land use regulations must be in accordance with a comprehensive plan.
Section 272-A subsection 10 and 11. of the New York State Town Law relating to Comprehensive Plans once adopted read as follows:
10. Periodic review. The town board shall provide, as a component of such proposed comprehensive plan, the maximum intervals at which the adopted plan shall be reviewed.
11. Effect of adoption of the town comprehensive plan. (a) All town land use regulations must be in accordance with a comprehensive plan adopted pursuant to this section.
This legal mandate is reflected in theIntroduction to the Comprehensive Plan:
A. Legislative Authority
The authority to conduct comprehensive planning and to adopt a comprehensive plan is granted to towns by the State Legislature. Adoption of a comprehensive plan by a town board requires that all town land use be in accordance with the plan. Furthermore, other governmental agencies must take the plan into consideration whenever their capital projects occur on land included in the town comprehensive plan. This provides a town with the appropriate guidance to review future projects and provides the essential background information and justification for amending or creating a zoning ordinance. The plan also provides developers/project sponsors with up-front guidance on where and how their projects can be developed, facilitating the site plan review process and providing early detection of potential land use conflicts.
This mandate has been tested and upheld by a variety of court cases.
The court ruled in In Osiecki v. Town of Huntington, lBB a regulation that departed from the comprehensive plan was invalidated for failure to articulate planning reasons for the deviation. Otherwise, "to accept the Town's contention that it is free to determine that the master plan should no longer be followed, without articulating a reason for that determination, would invite the kind of ad hoc and arbitrary application of zoning power that the comprehensive planning requirement was designed to avoid."
The court ruled in Infinity Consulting Group, Inc. v Town of Huntington
Town Law § 272-a(11) provides that where, as here, a town has adopted a formal comprehensive plan, the town's zoning decisions must be consistent with that plan.
The court ruled in: EMB Enterprises, LLC v. Town of Riverhead, 2010 WL 377314 (N.Y.A.D. 2 Dept. 2/2/2010).
“Further, the appellants do not contest the Supreme Court’s holding that the proposed change to the zoning ordinance conflicts with the provision of the Comprehensive Plan of the Town of Riverhead that “the existing commercial zoning should be retained” in the subject area and, thus, that the resolution violates Town Law §§ 263 and 272-a(11)(a) In light of the invalidity of the proposed change under Town Law §§ 263 and 272-a(11)(a), the appellants’contention that the Supreme Court erred in holding that the resolution also violates the mandate for environmental review under the State Environmental Quality Review Act (ECL art 8; hereinafter SEQRA) has been rendered academic.”
Simply stating that the law proposed is done so per
SECTION II. AUTHORITY
This law is enacted by the Town Board pursuant to its authority to adopt local laws under Article IX of the New York State Constitution, Section 261 of the Town Law, and Section 10 of the Municipal Home Rule Law.
I believe misrepresents the true parameters of the law applying to what is being proposed.
Therefore it seems to me that before theTown Board considers passing the Zoning Code amendments proposed by the Zoning and Land Use Review Committee it should ask for and review and make public their documentation relating to just how consistent the proposed Zoning Codeamendments are to the Comprehensive Plan and the supplemental studies and Neighborhood Master Plans to avoid any perception the Town is indulging in or appears to be indulging in “special interest, irrational ad hockery” prohibited in Udell v.Haas. I quote:
"What is mandated is that there be comprehensiveness of planning, rather than special interest, irrational ad hocery.
Home Occupation amendments:
I’ve spent portions of the last week or more rereading the web based Comprehensive Plan and the various studies and Neighborhood Master Plans.
I could find only cursory reference to Customary Home Occupation, but no recommendations suggesting that the current zoning code needed amendment.
Regulating Home Occupations has a lengthy legislative and history of court decisions confirming the ability of Town’s to regulate Home Occupations.
I’ve reviewed the Zoning Code of a number of Towns, including Bethlehem and Colonie. All of them focus on mitigating the impact of Home Occupations on neighbors. The proposed code for Minor Home Occupation appears to neither notify neighbors of the applicant that an application has been submitted, nor the conditions to which the applicant agrees to abide nor a process to notify the Town if and when the conditions for a Minor Home Occupation appear to have been breached.
The focus of these amendments seems to focus more on reducing the need for applicants to make permit applications and to reduce the administrative burden related to Home Occupation permitting.
I can find nothing in the Comprehensive Plan suggesting such Zoning Code amendments are recommended.
Mixed Use amendments:
The Comprehensive Plan clearly recommends that Mixed Use recommendations be uniquely tailored to the specific character of specific neighborhoods, rather than a “cookie cutter” concept applicable to a general zoning district.
The Comprehensive Plan discusses three uses of the term Mixed Use.
One use is to describe parts of town as having a variety of mixed uses, e.g. commercial and residential uses in close proximity.
A second use is to describe mixed uses within a structure, e.g. commercial and residential, and retail and office space.
A third use is to recommend that when in the future a big box mall is no longer a viable model, ways that the property and all of its impervious surfaces should be redeveloped based on “new urbanism” principles. “New urbanism” principles are recommended for any future development of parcels as Local Business that have not yet been developed.
With regard to the Mix Use Building zoning proposal being proposed for BN-RP zones, I think we should recognize that the BN-RP zone was created in response to the changes that have occurred in parts of Guilderland as Guilderland has grown over time. For instance as Route 20 traffic increased and widened, portions of Route 20 became less attractive as a residential “street”. Residences were thus permitted to become non-retail businesses and professional offices. I think I am correct in claiming that there is currently no BN-RP use with square footage anywhere near the 15,000 square feet proposed for the Mixed Use, Neighborhood definition. Since the current BN-RP uses were initially residences …. On small narrow and shallow lots… it is difficult to perceive where any Mix Use, Neighborhood building of 15,000 square
feet could exist unless multiple neighboring BN-RP lots are combined. If this eventuality is perceived as appropriate, it is not clear to me how the Comprehensive Plan recommendation to retain the character of a neighborhood will be possible.
Supplemental Comments:
I’d like to bring to the attention of the Town Board and Clerk that the web based Zoning Map does not cover the Town east of Route 155 to the Albany City Line.
In reference to my opening statement:
The Comprehensive Plan recommends that Town’s shopping Centers be capped at their current size, and that no new shopping centers be constructed.
The survey results confirm that over 70% of both those surveyed by phone and by mail believe that there is sufficient or too much commercial development in Town”.
Dr. Donald Reeb, Norwood Street, stated that part of his concern was with how these amendments would impact McKownville.
He further stated that that the present proposal did not quite address the characteristics of a Guilderland Center or a McKownville.
He stated that it was not clear what would happen if over space and time there were more and more home occupations in these close quarters and that the Mixed–Use proposal did not help McKownville at all.
He further stated that they would like to maintain the residential character of the area.
Also, the concern is that some properties zoned Local Business might be given over to Mixed Use Development, which would be unattractive and not serve the purposes of McKownville.
He said, It isn’t that we don’t see the benefit for other parts of Town, it’s just that Mckownville already contains some 70 + businesses and there are another 40 or so just across the City line. Quite frankly, we are pretty much filled up.”
He further stated that the McKownville Neighborhood Association was disheartened when they first saw this proposal.
He said that Supervisor Runion had put forth the concept of a “hamlet designation”, which could exempt them, making special provisions for those congested and intense uses in those areas.
He further stated that the Association did not have a definition and provision of this designation as yet and “are placing great faith in what that will contain to help protect and further the ability of the neighborhoods to sustain themselves forever in the following years.”
Doug Smith, McKown Road, stated that McKownville was a very desirable area to live in. Most of the properties were owner occupied. It was a very fragile area and that they were trying to hold the line and keep that character.
He stated that he had a concern with the Mixed Use Development, a change that would allow two residences to be in a small BNRP (Business Non-Retail Profession) property, which would cause a change in the economic formula and cause residential properties to change character.
He further stated that rules that make sense for other parts of Town are not necessarily right for McKownville. He stated that they are not in favor of going forward with these changes which may adversely affect them even though they may be beneficial to other areas in Town.
Supervisor Runion stated that the Town Board had not received a recommendation from the Albany County Planning Board so a vote should not be done this evening until the recommendation comes in.
He said, “Back in 1998, a former administration attempted to place a cap on Crossgates Mall, that legislation was challenged and the Courts struck the provision that would have placed a cap on the size of Crossgates Mall. So, presently, there is no difference between the definition as submitted for a super regional shopping center and the present zoning law. I believe that the only changes with the definitions were to add some additional sizes of shopping centers within the law. The other comments, I believe, concerned mostly McKownville. McKownville is one of those areas is unique in the Town in that it has been surrounded by unnatural boundaries. That being the Cityline, the NYS Thruway and some other major developments that have occurred on the perimeter of McKownville, NANO technology, SUNY campus and new
building that have been proposed there. I think it has put a lot of pressure on the Hamlet of McKownville. I know that the Comprehensive Plan that was adopted back in the ‘70’s or the zoning law that was reviewed in the ‘70’s,and there was a master plan that was reviewed by the Town Board in the 70’s, as well as the present Comprehensive Plan, put a significant regard to the concept of hamlets. It talked about the Hamlet of McKownville, the Hamlet of Westmere, the Hamlet of Guilderland, the Hamlet of Guilderland Center, and I think it is important that we maintain that structure as we look at the zoning revisions.
I think that there is some uniqueness to other communities that are also considered hamlets, whether that be Guilderland Center, or Westmere or the Hamlet of Guilderland. I know that we have looked at Rural Guilderland or the Western end of Guilderland and that’s almost become identifiable as somewhat of a Hamlet. So, I think it would be important that the current zoning law look at defining the various hamlets that fit within the Comprehensive Plan which, having those definitions, would allow this Town Board or future Town Boards to provide some sort of protection to the various hamlets for development that may or may not make sense within that regional area.
Those are things that I would like to see in the revisions as we move forward.”
Councilman Redlich asked if anyone had talked about making McKownville a village.
Supervisor Runion stated that it would require a lot of work and would make another level of government and another level of taxation.
Councilman Redlich stated that it would give more control over their zoning and if it is that critical perhaps they should look into the process involved in making it a village.
Councilwoman Slavick asked how a “hamlet” is formed.
Supervisor Runion explained it would be designed along defined boundaries. Hamlets can have separate zoning restrictions within the hamlet boundaries. The hamlet designation would allow the area to define their own destiny better within the zoning law definition.
Councilman Redlich stated that a hamlet would not have its own government.
MOTION#150 Councilman Redlich moved to CLOSE THE 7:30 PUBLIC HEARING ON A LOCAL LAW AMENDING THE ZONING LAW RE: HOME OCCUPATION AND MIXED USE DEVELOPMENT. Councilwoman Slavick seconded the motion and it was carried by the following roll call vote:
Councilman Redlich |
Aye |
Councilwoman Slavick |
Aye |
Councilman Pastore |
Aye |
Councilman Grimm |
Aye |
Supervisor Runion |
Aye |
MOTION #151 Councilwoman Slavick moved to SET A PUBLIC HEARING PURSUANT TO SECTION 202 OF THE TOWN LAW IN RELATION TO THE GUILDERLAND SEWER IMPROVEMENT DISTRICT BUDGET ON OCTOBER 19th , 2010 AT 7:30 PM. Councilman Redlich seconded the motion and it was carried by the following roll call vote:
Councilman Redlich |
Aye |
Councilwoman Slavick |
Aye |
Councilman Pastore |
Aye |
Councilman Grimm |
Aye |
Supervisor Runion |
Aye |
MOTION #152 Councilwoman Slavick moved to SET A PUBLIC HEARING PURSUANT TO SECTION 202 (a) OF THE TOWN LAW IN RELATION TO THE GUILDERLAND SEWER IMPROVEMENT DISTRICT BUDGET ON OCTOBER 19th, 2010 AT 7:45 PM. Councilman Redlich seconded the motion and it was carried by the following roll call vote:
Councilman Redlich |
Aye |
Councilwoman Slavick |
Aye |
Councilman Pastore |
Aye |
Councilman Grimm |
Aye |
Supervisor Runion |
Aye |
MOTION #153 Councilman Pastore moved to ADOPT THE FOLLOWING RESOLUTION FOR A COUNTY-WIDE MULTI-JURISDICTIONAL HAZARD MITIGATION PLAN FOR ALBANY COUNTY (PLEASE NOTE THAT THE PLAN IS AVAILABLE FOR REVIEW AT THE FOLLOWING WEBSITE:
RESOLUTION
ADOPTING A COUNTY-WIDE, MULTI-JURISDICTIONAL HAZARD MITIGATION PLAN FOR ALBANY COUNTY
WHEREAS, The County Hazard Mitigation Coordinator has requested the Town of Guilderland adopt the County-wide, multi-jurisdictional Hazard Mitigation Plan for Albany County, and
WHEREAS, The Coordinator indicated that the plan is a joint project between the Departmentof Public Works, which has the responsibility for Hazard Mitigation, the Sheriff’s Department Emergency Management Office, and all 19 municipalities in Albany County in accordance with the Disaster Mitigation Act of 2000, and
WHEREAS,Through the adoption of the plan, the County and participating municipalities will become eligible for hazard mitigation project grants once the plan is approved by the NYS Emergency Management Office and the Federal Emergency Management Agency, now, therefore be it
RESOLVED, By the Town Board of the Town of Guilderland that the County-wide, multi-jurisdictional Hazard Mitigation Plan is hereby adopted, and, be it further
RESOLVED,That the Town Clerk of the Town of Guilderland is directed to forward certified copies of this resolution to the appropriate County Officials.
Councilwoman Slavick seconded the motion and it was carried by the following roll call vote:
Councilman Redlich |
Aye |
Councilwoman Slavick |
Aye |
Councilman Pastore |
Aye |
Councilman Grimm |
Aye |
Supervisor Runion |
Aye |
MOTION#154 Councilman Pastore moved to AUTHORIZE THE SUPERVISOR TO SIGN A COLLECTOR’S WARRANT FOR THE GUILDERLAND WATER DISTRICT IN THE AMOUNT OF $163,446.24. Councilwoman Slavick seconded the motion and it was carried by the following roll call vote:
Councilman Redlich |
Aye |
Councilwoman Slavick |
Aye |
Councilman Pastore |
Aye |
Councilman Grimm |
Aye |
Supervisor Runion |
Aye |
MOTION#155 Councilwoman Slavick moved to ENTER INTO EXECUTIVE SESSION IN REGARD TO A DISCIPLINARY MATTER BROUGHT AGAINST A GUILDERLAND POLICE OFFICER AND SUCH OFFICER’S GRIEVANCE REQUEST FOR THE TOWN BOARD TO HEAR THE MATTER PURSUANT TO THE COLLECTIVE BARGAINING AGREEMENT BETWEEN THE TOWN OF GUILDERLAND AND THE GUILDERLAND POLICE BENEVOLENT ASSOCIATION AT 8:32 PM. Councilman Pastore seconded the motion and it was carried by the following roll call vote:
Councilman Redlich |
Recused himself |
Councilwoman Slavick |
Aye |
Councilman Pastore |
Aye |
Councilman Grimm |
Aye |
Supervisor Runion |
Aye |
MOTION#156 Councilwoman Slavick moved to EXIT EXECUTIVE SESSION AT 12:33 AM. Councilman Grimm seconded the motion and it was carried by the following roll call vote:
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Councilwoman Slavick |
Aye |
Councilman Pastore |
Aye |
Councilman Grimm |
Aye |
Supervisor Runion |
Aye |
MOTION#157 Councilwoman Slavick moved to ADJOURN THE OCTOBER 5TH, 2010 TOWN BOARD MEETING AT 12:35 AM. Councilman Grimm seconded the motion and it was carried by the following roll call vote:
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Councilwoman Slavick |
Aye |
Councilman Pastore |
Aye |
Councilman Grimm |
Aye |
Supervisor Runion |
Aye |
Respectfully submitted,
Rosemary Centi, Town Clerk
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