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Healthy Choices for Families

Town Board Minutes 10/08/2002

        HONORABLE               LIZ ORZEL KASPER                COUNCILWOMAN
                                WILLIAM CHAPMAN         COUNCILMAN
                                RICHARD A. HOLT         COUNCILMAN

Others present:  Helen Kopke, Town Clerk; Eric Dickson, Town Attorney; Darryl Ostrander, Deputy Police Chief; Kathy Matern, Town Planner; Frank Gavin, Superintendent of Highways.

        A public hearing was held concerning Adult Use businesses in Town.  
        Councilman Chapman commented that many area towns have taken steps to regulate adult businesses such as Glenville, Clifton Park, and Schenectady.  Adult uses consists of adult bookstores, video stores and motion and picture theaters.  The Supreme Court has ruled that adult uses cannot be prohibited and are protected by 1st Amendment rights of free speech.  Governments can use their police power to regulate these activities to minimize secondary effects of adult uses.  The courts have held that municipal regulations cannot focus on regulating adult uses because of what those uses contain. We are allowed to regulate uses that seek to mitigate the potential secondary impacts associated with adult uses such as lowering of property values, noise, trash, decline in commercial activity, decline in pedestrian traffic, and a possible increase in crime.  The law must be content neutral, advance a substantial government interest, cannot be overly broad but must be precise to control secondary effects.   It must allow avenues of communication that cannot be banned outright.  Communities could concentrate these uses on one particular zone or we can identify different parts of Town where these uses can be located.  
        Robert Pena, an expert in this matter, has examined the zones and the regulations.  With one exception our commercial areas are all immediately adjacent to residential or sensitive use sites where unregulated adult enterprises would be inappropriate.  Mr. Pena has recommended the IG zone.  The Town’s C-N district is completely inappropriate for adult uses due to the residential or sensitive use surrounding or immediately adjacent to these.  Our shopping center district would be vulnerable to adverse secondary impacts if adult uses were allowed here.  Our I-R zone (G. E. and KAPL) is not equipped for retail trade.  Our
C-H is particularly related to crime-related impact.
The I-G district has been identified as the best choice because it is large enough to accommodate these uses, there are substantial buffers to residential areas, it has a paved road that provides access, it is remote to discourage casual and impulse patronage, the site is fenced and wooded.  Many communities have located adult uses in industrial zones because they are generally buffered from residential areas, they don’t attract casual traffic, don’t attract mixed consumer audiences associated with retail and they tend to be physically removed from sensitive sites.
        The Town Board is recommending that the zone for adult uses be Hillside Commerce Park on Hillside Avenue.  No community wants to welcome these uses but the courts have made clear that they are protected so the Board has to decide where they can be located.
        Supervisor Smith said he speaks for the entire Board that no one on the Board wants to vote to zone for adult uses.  If they vote against this, although politically advantageous, it would leave the community vulnerable for people to seek a permit in a commercial area.  The Town would reject the request but if sued we would be told we could not prohibit adult uses.  They would then be allowed to locate in commercial areas and the Town would have to pay damages.  It would be irresponsible of the Board to prohibit these uses.  The Board has taken time to study this issue and a professional has determined the most effective and best location to minimize any adverse impact.  He hopes that no one comes to Niskayuna to open up an adult use business.
        Mary Matts, 2605 Balltown Road, is opposed to this zoning.  She understands the Town’s position but feels there are five or six apartment and condominium developments in this area, along with three churches and an elementary school.  

        Pat Griffiths, 2542 Banker Avenue, stated that his backyard borders the area being considered for adult uses.  He sees a problem with the proximity to Yates Village housing, the Niskayuna bus garage nearby, and the already heavy traffic on Hillside Avenue.  

        Leslie Gold, 1919 Pawtucket Avenue, observed that the consultant did not meet with the Planning Board.  Our industrial zone is adjacent to a residential zone and it is also adjacent to the JCC, recreation trail, and the boat club nearby.  She is also concerned with the secondary impacts as we would want the police to be able to respond quickly and she isn’t sure they would be able to at this location.

        Alyse Bennett, 45 Beechwood Avenue, Charlton, appeared representing the Trinity Baptist Church on Balltown Road and opposes zoning this area for adult uses.  The church is concerned about adult uses coming into the community.  Supervisor Smith stated that the Board is taking this action because they felt that they had to place proper restrictions because several towns surrounding us have gone through the same process which created vulnerability for Niskayuna.  He hopes that no one chooses to open a store but the Town has had inquiries about adult use zones.  

        Mary Matts, 2605 Balltown Road, asked if the consultant who did the study was a resident of the Town.  Supervisor Smith answered that he is not a resident.  Adult use zoning is his specialty.  Restrictions can not be established that a proprietor must own the land in order to build a facility.  

Kevin Lestead, 1701 Dorwaldt Boulevard,  asked why his family was asked to move their basketball hoop.  

        Mike Fritz, 2128 Baker Avenue East, commented that he liked the Skateboard Park.  Materials loosened up over time that made it better, and his friends were glad it was in Town.  He would like to see more users of the park.

        Johnny Cooper, 1390 Keyes Avenue,  wondered why there was no area for BMX biking.  Supervisor Smith said it is something that the Board can look at.

        Elaine Lipstein, 2330 Knolls View Drive, inquired about the status of the Nott Street East condominiums that were voted down at the last Board meeting.  The applicant has made a new application and has modified the plan from 30 units to 24.  The Planning Board has conducted a public hearing and will make a recommendation to the Town Board.  She said there are four or five couples who are very interested in staying in Niskayuna.  These homes are a great opportunity for them to stay in the community, pay taxes, and have a convenient place to live.  She feels there is a drastic shortage of desirable apartments either to rent or buy.

        Stephen Dash, 1572 Dean Street, asked why the traffic light on Balltown Road and Lexington Parkway is so long.   He asked if the light could be regulated so that it would be activated when traffic appeared on Balltown Road.   Mr. Gavin was asked to speak to New York State DOT.

        Steven McMinn, 1504 Rowe Road, asked if the light in front of the high school could be set to blink during the summer.  

        John Hogan, 2 Knolls Road, inquired about the vacant space at St. James Square.  

        Eileen McLoughlin 1533 Baker Avenue, liked the skate park and thought it was great.  She found it difficult to buy passes during working hours and asked if the Board could extend hours of the Recreation Department to 6 p.m. so she could buy passes.  Supervisor Smith stated there were a number of with dates with extended hours that were advertised in the newspaper and web site and this will continue next year in the spring.

        Johnny Cooper, 1390 Keyes, felt that new housing developments were forcing deer into roadways and they were being hit by cars.  He asked if the Town could stop development.

        Jill Bucinel, 1063 Merlin Drive, noticed an increase in speeding and road rage on Route 7  and she wanted to make the Board aware of this.  The problem seems to be heavier during rush hour.  She thanked Frank Gavin for taking care of the potholes quickly this winter.

        Jay Mobley, 2471 Hilltop Road, inquired about the adult use zoning and its proximity to Craig School.

        The following resolutions were approved with a vote of five ayes unless otherwise noted.        
Resolution 2002-250 calls for a Special Meeting of the Town Board on October 15, 2002 at 7 p.m.

        Resolution 2002-251 reappoints Frank Feiner, 2957 Lexington Parkway, to membership on the Board of Assessment Review to expire September 30, 2007.

        Resolution 2002-252 calls for a public hearing regarding the Preliminary Budget of the Town for 2003 on October 22, 2002 at 7:05 p.m.

        Resolution 2002-253 calls for a public hearing October 22, 2002 at 7:05 p.m. regarding the Assessment Roll for the Water, Sewer, Drainage, Lighting, and Park Districts of the Town for 2003.

        Resolution 2002-254 calls for a public hearing October 22, 2002 at 7 p.m. to consider amendment of the Vehicle and Traffic Code for a Stop sign on Comanche Trail at Nott Street East and a Stop sign on Randall Road at Avon Crest Boulevard.

        There being no further business to come before the Town Board, the Supervisor adjourned the meeting.

                                                Helen Kopke, Town Clerk


One Niskayuna Circle, Niskayuna, NY 12309
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