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Healthy Choices for Families

 
Town Board Minutes 2/27/2007
AT A REGULAR MEETING OF THE TOWN BOARD OF THE TOWN OF NISKAYUNA DULY CALLED AND HELD ON THE 27TH DAY OF FEBRUARY, 2007, AT THE TOWN OFFICE BUILDING, ONE NISKAYUNA CIRCLE, NISKAYUNA, NEW YORK, THE FOLLOWING MEMBERS WERE PRESENT;

LIZ ORZEL KASPER, COUNCILWOMAN
WILLIAM R. CHAPMAN, COUNCILMAN
MARIE P. FREUND, COUNCILWOMAN
DIANE P. O’DONNELL, COUNCILWOMAN
LUKE J. SMITH, SUPERVISOR

        Others present:  Helen Kopke, Town Clerk; Eric Dickson, Town Attorney; Kathy Matern, Town Planner; Lew Moskowitz, Chief of Police; Stan Fiminski, Police Lieut.; Frank Gavin, Superintendent of Highways.

TOWN CLERK’S BUSINESS
        The minutes of the meeting of February 13 were approved as presented.

PRIVILEGE OF THE FLOOR
        3212007_32522_0.png, noted that the Board had been given legal advice by the law firm White, Osterman & Hannah as to both the EIS and a building moratorium.  They feel that a moratorium is inappropriate because those who advocate it are aiming at only a single property.  If this were the case they would be right.  He is not an attorney but has written a dissertation on Regulatory & Property Law.  White & Osterman use cases not on point.  One case deals with a public health issue the second deals with a case of racism in zoning and the cases that they cite supports exactly what he and others are advocating.  They argued that the enactment of a moratorium upon certain land use within a municipality will be considered a valid stop-gap or interim measure where it is reasonably designed to temporary halt a development while the municipality considers comprehensive zoning changes.   
        This is exactly what he and others have asked the Board to do and the law is clearly in support of the Town doing just that.  The letter also states that the EIS is not mandated.  There are many cases that support towns using a full EIS for exactly the kind of situation that is taking place in Niskayuna.
        The Town Board should ask if they chose to proceed with a SUP and vote on an EIS whether it is good policy because they are supported by New York law.  Their attorney stated that they have done their due diligence but he asked the Board to do their own due diligence which a full EIS will do.  It will allow the Board to gather all the information they can to make the best development decision.  The document is not very persuasive in that they can’t issue a moratorium or do a full EIS and supports the view of the residents.

        3212007_32522_0.png, is an attorney and is concerned by the memo by Whiteman & Osterman. As attorney’s, they render opinions, which are not law and not binding.  Whiteman & Osterman’s attorneys stated that a moratorium is improper and even though the Ingersoll site is historically important that status does not mean that a full EIS is warranted.
He reminded the Board that their arguments are nothing more than an opinion and do not represent a comprehensive overview of all the laws on this topic.  A judge could easily interpret the law entirely different. Their arguments are of questionable strength and relevance to the critical issues that the Board must consider.  They argue that a moratorium is improper and he argues that a moratorium is proper and prudent in this circumstance.  Some of the case law they cited supports the fact that a moratorium is called for here.
They argue that the Town’s consideration of a moratorium is “solely to prevent the development of the Ingersoll site”.  This is patently false.  The proponents of the moratorium are concerned with all the lands and historic sites throughout the Town.  Ingersoll is one of several examples of historic sites throughout the community that needs to be considered.  
To be lawful, a moratorium must be enacted for a permissible purpose such as to study and/or adopt a new plan or regulations.  Mr. Strayer asked the Board to consider revising the Town’s Comprehensive Plan and said that deficiencies throughout the plan and oversights throughout the Town make that revision necessary.  He cited two laws stating that a municipality may lawfully enact ‘stop-gap” legislation pending a revised Comprehensive Plan just as Mr. Strayer proposes.  If that is the case, then a moratorium is entirely appropriate in a situation before the Board.  The fact that the Ingersoll property is the event that triggered the idea of a moratorium is irrelevant if a moratorium impacts not just one development but the public at large.  In Mr. Strayer’s plan it does and is therefore lawful, appropriate, and something that is clearly within the power of the Town Board to authorize.  
        They also argue that an EIS is not required because historical sites aren’t necessarily triggering of this law.  Under SEQR laws a full EIS would be a straightforward requirement of the Ingersoll was a designated historic land site.  Now, the site is merely eligible because the application for that eligibility can only be submitted by the owner of the property.  Since they are selling the property, they are unlikely to apply for this status, although it is clear that the Home would be granted that designation.  There are many other reasons an EIS is required which are articulated in the CAC’s recommendations to the Town Board and in the testimony and letters of dozens of citizens.  
        The developer’s attorneys do not contest the CAC’s recommendations or argue that there are no other grounds for an EIS.  They only argue that historic eligibility is insufficient to require a full EIS.  

        3212007_32522_0.png, stated they chose Niskayuna because of its residential nature and hoped that it will stay that way.  They are in this together and she has supported the Board through elections.  The residents can make their job easier and suggested that the Board use the public as a resource to gather information.  

        3212007_32522_0.png, asked about relocating the March 13 meeting which had not been decided yet.  The Superintendent of Schools will make space available if the Town Board decides to do that.  The Town has also put speakers in the lobby for the rare occasion that we have an overflow crowd.  She requested that Town meetings be televised and noted that the Governor is advocating web-streaming meetings.  She wanted more involvement through more education through television.  
        Supervisor Smith stated that when approached to televise our meetings he has asked those inquiring to meet with him, but he has not heard from them.  He did get an individual  who installed the speakers and he has a proposal for the Board to consider that was secured before the editorial on Sunday.
        The archeological work is not complete and the lawyer’s submission at this stage is misleading and contradictory.  
The Linda Lane accommodations shows 13 items that residents wanted from the developer.  She heard rumors that the Linda Lane residents were under a lot of pressure and she heard about threats that if the developer does not get the SUP they will have one big box store.  It was a threat to try and make people think that they would be better off with this mall. Two homeowners have their houses up for sale because they obviously don’t want the mall and are only agreeing because they thought if they didn’t agree they wouldn’t get anything.  These are some of the rumors that she heard.  
The residents stated that as a group they render no opinion or recommendation to the Board whether to issue a positive or negative declaration for this project.  They support the project if the Board is satisfied that all the concerns raised by the CAC have been addressed and that items 1 through 13 are incorporated into their approvals.  She felt that this was a strong statement that the CAC concerns have not been addressed.  The residents were against the mall before, they are not for it, they are only trying to protect what little value they have left in their property if a mall went through.  She requested a full EIS.

        3212007_32522_0.png, asked about the history of moratoriums in Niskayuna.  She hoped the Board would look into and give strong consideration for a moratorium from 6 months to 1 year.  We do have historic houses in Town and we have a lot of green areas that should be looked at.  
The Town has a historical survey performed in 1985 which surveyed all the historical properties in Town.

        3212007_32522_0.png, Chair, Schenectady Heritage Foundation, a local historic preservation group, supports the preservation of the Home and the entire site.  They support the idea of a moratorium so the Town can make a more reasonable assessment of the whole situation in the entire Town concerning our historic properties and how more recent development have effected the Town overall.  A moratorium would be a reasonable and prudent thing to do.  She also urged the Board to do a full EIS and listen to the ground swell of people who have come out to support the preservation of this site.

        3212007_32522_0.png, stated his support for the moratorium.  He stated that he represents the Stanford Heights section of Niskayuna and felt it is the most neglected section of Niskayuna.  The problems that existed 50 years ago still exist, in particular the traffic conditions at Fillmore and Cliff Street, Fillmore & Albany Street, and Stanford & Albany Street.  A Stop sign is located 6 feet from the intersection.  He felt that if an EIS had been done when Drome Sound came in, something would have been done about Albany Street.  He is amazed that Metroplex has not reviewed this area and he feels this project will take away from the tax base in Schenectady.  

        3212007_32522_0.png, has several years experience with traffic studies and traffic controls.  He suggested that the project would be introducing at least two additional turning movements across traffic on Rt. 5 and Rt. 146.  It may not be terrible under very light conditions but Saturday and holiday conditions will cause a snarl.  They must do studies on the impact of the signals.  The proposed road through the project would create a triangle (which is a traffic engineering nightmare).  A Stop must be built in as traffic circulation cannot be maintained without one.  It would have to be built into one of two main thoroughfares (Balltown Road or State Street). The confluence of these two State roads would be severely impacted by such a triangle and the necessity to have to build in a stop and not be able to maintain traffic flow.  State traffic engineering studies would be indicated.  He urged a moratorium for no other reason then to adequately study the impact of traffic.  
Supervisor Smith stated that traffic studies have been done and the State Department of Transportation has looked at this and report there is no problem with it.  The studies are filed with the Planning Department for public review.

        3212007_32522_0.png, was informed that the Town is working in partnership with the ECOS to rehab the Grange and will then lease it to them for their use.  Hopefully in the spring or summer we might be able to finish this.  Phase I of St. James Square has a new owner.  A new restaurant has opened and Sylvan Learning Center is rehabilitating a space.  We are told the new owner has three or four additional leases pending.  There has been rumor of a specialty grocery store in the Grand Union location.  

        3212007_32522_0.png, shared her opinion about the Ingersoll property and the proposed project.  There are many options available to preserve the property and urged the Board to use the options available to preserve the site.

        3212007_32522_0.png, is a Town resident and attorney for John Roth, developer of the Ingersoll/Stanford Crossing.   “The original proposal for the development of the Ingersoll property was a nine-lot commercial subdivision and the plan called for the demolition of the existing home.  
The plan was submitted to the Town, and upon submission, a dialog ensued between my client, Town officials, and the NYSDOT.  My client was advised that there was a traffic issue with motorists leaving Mohawk Commons and using Linda Lane as a cut through to get to State Street.  The traffic pattern created stacking when motorists waited to make the left turn onto Linda Lane.  This caused backups and daily accidents and created an unsafe environment for Balltown Road and the Linda Lane residents.  Even though those residents resided in the City of Schenectady, Town officials were concerned for their safety and the burden that was placed on Linda Lane residents by Mohawk Commons a use for the benefits for the Town of Niskayuna.  Town officials thought that Linda Lane residents needed some relief.  
Town officials also had concerns for the handicapped, especially those in wheelchairs had no way to reach O. D. Heck from the bus stop on State Street.  Town officials stressed the need for sidewalks along Balltown Road to service the handicapped.  
Lastly, Town officials stressed the importance and significance of saving the Ingersoll Home and to have it preserved and renovated for a use that everyone could enjoy.  Those Town officials did a tremendous job in balancing the wants and the needs of the Town and surrounding community with controlled commercial development.  
What a concept.  Help alleviate congestion on Balltown Road; help the Linda Lane residents with traffic safety issues; help the handicapped, especially those in wheelchairs; preserve and renovate the existing Ingersoll Home so everyone could enjoy its history; provide the Town with services that its residents are calling for (i.e. more restaurants); and increase our tax base with controlled commercial development to provide tax relief for our residents.  What an accomplishment - that many Town residents recognize today.  Those Town officials should be commended for a great job in representing our entire Town.  Such planning ideas were lacking in prior administrations.
As a result of the comments and recommendations, Mr. Roth realized that those suggestions would cost him considerable time and money, but he revised his plan.  The revisions included sidewalks along Balltown Road; a connector road through the site from Balltown to State Street; individual pad sites; and restoration and preservation of the Ingersoll Home to be used as a restaurant.  The revised plan was submitted.  Upon submission the Committee to Save the Ingersoll started with their accusations:  1) pursuant to SEQR the project is considered segmentation with the Consaul Road project.  Answer: not true.  2) the Ingersoll Board of Trustees is being kept in the dark and has not consented to the relocation of its facility to Consaul Road or the sale of the property to Mr. Roth.  Answer, not true.  3) The Ingersoll has not received all necessary approvals from the NYS Attorney General’s Office and the NYS Department of Health (not true).  4) The Ingersoll is losing its not-for-profit status and becoming a for-profit.  Answer, not true.  5) That there is presently an open investigation pending before the NYS Attorney General’s Office against Ingersoll because of self dealing with its Board and a conflict of interest with its attorney as it pertains to its application – Answer, not true.  6) That Mr. Roth’s contract to purchase the Ingersoll Home is contingent upon Mr. Roth receiving approvals from the Town of Niskayuna  - not true.
The revised plan was reviewed by the Town of Niskayuna CAC.  The Committee passed a non-binding recommendation to the Town Planning Board and Town Board. They recommended the Town Board, as lead agency, issue a positive declaration and require a full EIS be prepared by Mr. Roth.  The Committee directed one its members Mr. Strayer to render an opinion. The opinion was hailed by the committee to protect the Ingersoll, the editor of the Gazette newspaper, the editor of the Spotlight Journal and Channel 16 as the authority for the Town Board to follow in identifying environmental issues that must be addressed prior to entertaining any application to develop the Ingersoll property.  It was the committee’s belief that these issues could only be addressed by the preparation of a full EIS.  
Upon Mr. Roth receiving the recommendation, he retained the most qualified lawyers and consultants in the field of engineering, traffic, noise, economic impact, lighting, archeology, and SEQR to address every concern raised in the recommendation.  This included the concerns of the Linda Lane residents, leaving the home in its current location, and the authority of the Board to issue a negative declaration based upon Mr. Roth’s responses.
The cost to Mr. Roth to respond to the advisory committee recommendations is currently in excess of $500,000.  It is their opinion, as well as the opinion of several members of the CAC, that Mr. Roth has satisfied every concern raised in their original recommendation and that the development will not have a significant adverse impact on the environment and that a negative declaration should be issued.  As a result the Committee to save the Ingersoll is now demanding that the Town Board either find the money to purchase the property so it can be left in its current state or issue a moratorium to block the development.  
I believe a moratorium is unfounded and inappropriate to target this project when the Town’s zoning and Comprehensive Plan are fully up to date. I have no sense on how this Board will vote on the issues of a moratorium or a Special Use Permit, but I do know the following to be a reality:
1) that the Ingersoll Home has completed its bond closing; 2) building permits to build the new facility have been issued, and that construction has commenced, and a move-in date has been scheduled for October 1, 2007; 3) Mr. Roth has at this time a binding enforceable contingency-free contract to purchase the Ingersoll property; 4) Mr. Roth will be purchasing the property with or without Town approval and will be paying in excess of $5million which includes the land acquisition costs.
The fate of the Ingersoll Home, its trees and grounds, rests solely in the hands of Mr. Roth, not Ms. Champagne, not Ed Reilly, or the committee to save Ingersoll.  It can be restored, preserved, and reused as proposed or it can be left to further deteriorate and fall apart on its own.  I would like to commend Mr. Roth for his willingness to sacrifice his own gains to accommodate the needs of the Town of Niskayuna. I wish to thank him for the presence he has shown through the process and refrain from using the media as a tool to seek his approvals and for keeping things civil.  I know I speak for myself and a large contingency of Niskayuna residents you have handled yourself with the utmost dignity, integrity and selflessness through all the accusations, innuendos, and falsities that have been leveled against you and the project.  
I would also like to thank Supervisor Smith, Planning Board Chairman Walsh, former Planning Board Chairman Hendricks, and Town Planner Kathy Matern for their insight and for representing the entire Town’s best interest in this project and not a select few.  You have shown the public that the Ingersoll Home can be saved and the Town can have commercial development which it so desperately needs.”

        3212007_32522_0.png, stated that on the tape, the attorney said to be representing the developer, said the Home would remain empty or be creatively used.  He thanked the Board for having speakers installed so quickly and for considering bids for having their meetings televised. He hoped this would be for agenda as well as for regular meetings.  He hoped that the Board would consider a moratorium to assess the historic value of Town properties.

        3212007_32522_0.png, is the attorney for the Ingersoll residents and suggested that there are 30 people, currently residing in the Ingersoll Home who would not be in favor of a moratorium.  Later on this year there will be 40 more senior citizens from the County who will be glad that a moratorium was not put into place when the 40 extra beds open up at the new facility.  There are a lot of benefits to the plan at 3359 Consaul Road and the plan for the existing Ingersoll site.  He hoped the benefits are sufficiently in the Board’s mind as they consider the proposal before them.  

        3212007_32522_0.png, challenged some of the things Mr. Leece said.  He said he represented the trustees of Ingersoll, but Don Siegel, Attorney General for Charities (who had investigated this matter), said the trustees of Ingersoll had never been represented by Mr. Leece, so this questions his credibility.  If there had been 30 residents, they wouldn’t have their debt and loss of money every month.  They have never had a fund raiser, or good campaign to bring people in but did have a good plan to expand at their current location which would have cost them $6million.  They did not try and raise money for this as many facilities do when they are in that situation.  Instead they came up with the current plan which means borrowing $9million for an $11.5million facility.  
Mr. Roth is not going to lose money by building the new facility, and maybe would be satisfied by making money on that facility and leaving us the beauty of the land which is surrounding by a lot of residential land and should be ours for the next hundred years.  There are many new places in Schenectady, such as the $50million we are getting to clean up the Alcoa site.  It would be great if Roth made plans to go down there and have a mall there in the middle of the City.  The City is trying to build up and we are trying to remain more residential.  

        3212007_32522_0.png, didn’t understand if they can’t take of the Ingersoll Home with 30 residents, how will they take care of a larger facility?  A few years Ingersoll Home was run down and poorly administered. The home was allowed to run down and now individuals are trying to take a not-for-profit entity and make it into a productive one for those who are interested in feathering their pockets.

        3212007_32522_0.pnge, thanked the Highway Department for their great job removing snow during the last storm.  She is pleased with the bare roads policy put into place.  This is a wonderful Town and she hoped that people power come before any other at this point.

        3212007_32522_0.png, hoped that the Board realizes that the suggestion that the volunteer members of the Board of Trustees of the Ingersoll will line their pockets on this deal is incorrect and offensive.  He corrected the record that per the purchase contract on 3359 Consaul Road, the Highbridge attorney was responsible for obtaining all the municipal approvals on behalf of the Ingersoll and the Ingersoll’s name is on the application for the limited purpose of obtaining the approval. Lou Leece was the attorney.  For all other items Higgins, Roberts, Beyerl & Coan have been the attorney for Ingersoll.

        3212007_32522_0.pngt, heard Mr. Leece’s statement and he hoped that the Town Board does not get lost in the bigger picture.  This is not about public health or segmentation and it never was.  As a member of CAC, in the movement of the Ingersoll property was a building that required 5 acres that only had 4 acres and it didn’t seem like a good development decision.  Looking at the Balltown Road and State Street proposal, he saw a very big development which the Town requires 25 acres for on a site less than half that size which does not sound like good development decision to him.  He hoped that the Town does not lose sight that it is not about personalities, the Board of Health; it is about making good long term development decisions for the Town.

Councilwoman Kasper stated that this process has given her sleepless nights.  The hardest part has been the he-said, she-said.  She apologized to Mr. Leece for not returning his many phone calls because she didn’t want to talk to him; she wanted to listen to everybody.  She felt he was calling with a very biased view.  He said to call if she had questions and she had no questions he could answer.
The hardest thing for her the whole time is that she thought the Ingersoll Home would stay there forever and nobody did anything about keeping it forever.  She felt Consaul Road was too small and voted against it.  She has listened to the residents and talked to them and there are many people who want a development and many who don’t care if the house gets torn down.  There are many people who want it stay just like it is, there are many people who do not want to pay to keep it like it is, there are many people who don’t want a park over there.  
She wants to look at what she can do and has talked to the Planner and read all the materials and she is looking at a moratorium and positive EIS.  If she votes no for SUP and it goes through the Home is destroyed.  If she votes for a SUP, then she is pretty well guaranteed that the Home will stay there.  She read a “probable” creative use and no one can guarantee it will stay unless they say it is a historical site and can’t be touched.  She doesn’t see, other than causing a moratorium and more time, a positive EIS and coming down to Special Use or no Special Use.  No one will be happy in this.  She wants it to stay just like it is today.  
She hopes that the Board looks at what they can do and can’t do.  It isn’t that they haven’t listened.  Developers are in it to make money, historical people are in there to keep the building; some people like to keep the land; how we can accomplish all this she doesn’t know.  She wished they had rebuilt on that property.  She is happy that the people who live at Ingersoll will be able to move into Consaul Road at the price they are paying.  They will be phased out and new people will be paying market value for the beds.  The Ingersoll Home as we know it will be gone.  They must look at basic facts and not he-said, she-said.  

        3212007_32522_0.png, stated that the current residents will be moving over at their existing cost.  New residents will be coming in at a slightly higher rate.  It will still be marketed toward the lower to mid-income individuals.  The will does not say anything about “indigent men” but speaks to people who can’t care of themselves on their own.  You can read an economic factor into this, but the charitable mission of the Ingersoll is not going to change.  There is still a large endowment that will be subsidized by the people who live there and new residents will also be subsidized.  He will submit the rate schedule to the Board.

        3212007_32522_0.png, cited the Berger Commission that the County e has too many nursing home beds available.  This site effects Schenectady and the entranceway to our area and asked if the Board had talked to the County Board, City Council, and to the Berger Commission.  This area is the most over layered and she is frustrated that the County and Town Board meet on the same night.  Why aren’t they talking to each other if they are not.  If they are talking where is the information
Supervisor Smith stated that the County and City were asked to comment and they deferred to the Town.  This is not a nursing home; it is an assisted care facility.

        3212007_32522_0.png, stated that she had read part of the will and it indicates that the home was meant for white indigent men, 50 years and older.  

        3212007_32522_0.png, will review the traffic studies and stated that after several years of working with the State traffic engineers, and as a consultant, the greatest concern seems to be is the impact going to affect the State financially in terms of having to signalize or otherwise alter the traffic flow.  There is much additional study that is seriously warranted.

Town Board discussion on the Ingersoll Home project.
Supervisor Smith stated that the Town has received a tremendous amount of material and the Board has spent a tremendous amount of time reviewing this.  They have been acting very responsibly.  People have said that he is pushing this through.  He feels that after many months of review, the developer deserves an answer, whatever that answer may be so they can determine what they have to do with this project.  He hopes that the Board will go forward with a decision on March 13.  Tonight the Board can talk about where they stand or what they are doing at this point.
Councilwoman O’Donnell stated that the Board has had the opportunity to listen to the public at Board meetings.  She thinks that part of representing the whole Town is also listening to what people say outside of these doors.  She has spent a lot of time at such things as sporting events and different school events and asking residents what they think about this project, and what do they know about it.  She thinks that if we only consider what is said in this room (which is very important) they are not hearing everything.  Councilwoman Freund can comment also about multiple emails she has received and different conversations she has had with people when she has approached them about the project.  She has asked do they know about it, what do they feel about it, would they save the house, not save the house, do they want the development, would they want to purchase the property.  It is interesting to hear what people say outside because not everybody comes to the meetings, and they are not televised right now.  It is important to her that we really hear from as many people as we can.
Councilwoman Freund asked about the specific time for a moratorium.  Attorney Eric Dickson stated that it could be any time frame, but can’t be excessive and must be related to a task that they want to accomplish and should be reasonably related temporally to the accomplishment of that task.  The Board would need a clear idea how long a task would take.  We would have to identify our task and determine what would be a reasonable to complete such a task.  We have had a couple of moratoriums over the years.  Court cases say that they should be as short as possible.  If we are having a stop-gap measure to allow us to do something and put things in a status quo while we are doing it, do it and get it over with.  Then the Board also has to determine what the exceptions would be.  They could be as severe as not even allowing building permits if the situation calls for that.  Applications for permits can be defined should be reasonably related to what they want to accomplish.
In response to Councilwoman Kasper’s question if the Board approves a positive declaration, Attorney Dickson stated that the threshold question the Board has to answer is the determination of environment significance for this project.  If the Board makes an affirmative finding that there are no significant environmental consequences to this project and make a negative declaration, then they can go ahead and entertain the main question which is the SUP.  If they make a positive declaration because a majority of the Board does not find supportable findings that there are no environmental impacts here, then that requires the EIS to be drawn up and they cannot, under the law, entertain the question of a SUP until the SEQR process is complete by either a negative declaration or going through with the EIS.
This is Type I action which is defined in the regulations that are likely to have environmental consequences so that in this instance if they were going to make a negative declaration he recommended that they draw up a separate resolution with very specific findings to support their determination that there were no environmental consequences.  The legal threshold for a positive declaration is entirely different than a negative declaration. The presumption is that Type I actions are going to require an EIS so that in order to overcome that presumption, the Board must state findings and make a record of sufficiently identifying the issues, taking a hard look at them, supporting the negative declaration with a reasoned discourse.
Councilwoman Kasper would like the Board to consider a resolution for a positive declaration.  There are a lot of areas that need further study and it behooves us to review this before any other decision is made.  Attorney Dickson stated that if the majority of the Board wanted a negative declaration we would have to develop findings and a decision that supported that, or else it is not supportable if legally challenged. If we recommend a positive declaration it is much less of a threshold.  
Councilwoman O’Donnell asked to hear what Councilwoman Kasper thought was missing.  Councilman Chapman responded by joining Councilwoman Kasper that he thinks a full EIS is something that the Board should do.  He would also be in support of considering a moratorium at the same time considering the Town look at ordinances on landmark preservation which could happen at the same time.  
He went on to state that in support of the EIS, we have done full scale environment reviews for St. James Square, Hannaford Plaza, Glen Eddy, and also for our Office Technology Park.  All these had traffic, water drainage, economics, and a whole range of issues that were considered.  It is also important that the Planning Board unanimously recommended a full EIS and our CAC was unanimous in asking for a full EIS and we have had a number of letters and speakers who have asked for that.  
When the applicant asked for some time to respond to the CAC letter he was not aware that the developer would be mounting a substantial effort to develop archeological studies and the rest of those things.  Much of what is there could be there as part of a full scale EIS and the work wouldn’t have to be repeated.  When you do a full EIS there is a scoping session where members of the Planning Board, CAC, County Planning, citizens, and members of the Town Board get to specify some things that they feel need to be addressed.  In some sense the items that were in the CAC memo were looked at by the developer and were addressed, but he would say there are still some questions that they haven’t answered.    He doesn’t think that the work done so far would qualify as a full EIS.
Councilwoman O’Donnell hears vaguely that there are things missing and she understands about the scoping session but she is not hearing concretely what he thinks is missing.  Councilwoman Kasper stated traffic is number one.  She thinks that when you have the kind of campaign mounted that we have had we should step farther back and make sure.  She is confused by what one person says against another.  The speaker at tonight’s meeting raised a real issue and he seemed to be credible.  She read all the traffic reports submitted and read their lawyers letter about a moratorium.  Now we have the other side.  She thinks that when we rely only on the information that we get that is being paid for by the people who will benefit from this that it behooves us to look harder on the other side.  Mr. Brownstein gave his unsolicited point of view which she thinks is great and why she is for a positive declaration.  She got the official builders side now she wants the official other side.  There are too many questions such as traffic.  She is concerned how they got the archeological information – she is sure there are relics there.  
Councilwoman O’Donnell questioned, if it is only traffic then do you go full scale or do you just look at traffic and have someone else do a traffic study.  Attorney Dickson stated that is what the scoping session is.  You identify what you want to do in the scoping session.
Supervisor Smith is concerned about the traffic counts relative to the potential for a warrant for a light on State Street..  Through the Site Plan process he would like to see that new traffic counts be done so we can support the traffic light.  We have information that the location of the bus stop is going to put it over the top. We can get the light on State Street but there was some question when the traffic counts were done even though they are adjusted seasonally based on formulas from DOT and they were satisfied.  He would like to see counts at a different time to have some information on that. He is not sure if this rises to the level of a full EIS.  
Councilwoman Freund asked whose expense would a traffic light be?  The developer would be responsible.
Councilman Chapman stated that in their project narrative of January 8, 2007, they describe the project as a community oriented shopping center and given its location it may function as part of the regionally oriented Mohawk Commons.  The Chazen Engineering document uses the Specialty Retail Center category and use the lower end rate of 2.08 as noted by the CAC.  It may be necessary to revisit this value and adjust accordingly to appropriately count for traffic volumes on the site.  
The applicant has indicated that DOT has reviewed the rates with no objections noted and they deferred to NYSDOT.  He doesn’t know that because DOT objected that is something the Town could take a look at.  Mr. Strayer and Mr. Wilkerson pointed out that the Specialty Retail Center category is retail specializing in clothing, apparel, services such as real estate offices, florists, or restaurants.  The peak trip for this category is 2.03-5.16 range.  They are 2.08 so they are at the bottom of this lower range but the CAC point out that the 820 range would be more appropriate which was used for St. James Square.  They are telling us it is going to be a shopping center but they are using a rate for a Specialty Retail.  Some of the things we have learned about so far about what would be in there are not really specialty retail.  They are a pharmacy, bank, and three restaurants which are all high traffic turnover item, the kind that you find in Mohawk Commons.  If you went to higher per trip rate (these are the number of trips per 100 SF) you could more than double the traffic counts that they have in this this is a concern.
There has been some debate about the intersections going northbound on Balltown Road from Consaul and Route 7 that there is a traffic backup there.  They have indicated that those intersections should be part of this because we know more traffic there, not only on holidays and Christmas, but ordinary getting home traffic in the evening is already impacted.  
Councilwoman O’Donnell said it sounds like a number of the Board think that the traffic is a concern and something to think about.  She has also been thinking that if we have this building and it doesn’t have a use, she fears for the building because we can talk about leaving it just as it is and having its park-like setting, but without a use what will happen to this building.  Is there an opportunity here to turn it into a restaurant and have the ability for people to be able to see it.  She understands that the grounds wouldn’t be the same but at least the public would be able to go in it.  She thinks about Glen Sanders and thinks that the road to Glen Sanders becoming a restaurant and the additions to it and the additions to the hotel weren’t smooth sailing.  A lot of us would agree that Glen Sanders has become quite a gem and the building has a use and the building is still there for people to see.  She thinks the opportunity that the developer has given to save the building with a use may be a very good one.  If we own it, we are going to rehab it.
Councilman Chapman stated that there are a lot of older adults who want to stay in Niskayuna and pointed out a recent article in the Times that the elderly are returning to the North.  They are 55-60 who want to come back to be closer to their children so he can see the building being used for apartments for older adults. It is on the bus line and across from Mohawk Commons and would meet a need we have in our community.  There are other ideas from thoughtful people at the State level and our own community.  He would keep the whole building as it is and look at it as a historic cultural landmark that is 192 years old.  Historic preservation people have given us very detailed write-ups on the history of the building and its relevance to our own community.  Landmarks are public property as part of our historic culture and as elected representatives we’re responsible for protecting that as part of our public good.  That is why over 200 communities in the state have enacted local historic preservation laws.  We wouldn’t have to reinvent the wheel to do this and we could consider a moratorium and it wouldn’t have to be on building permits throughout the whole Town, it could be a moratorium on historic sites in Niskayuna.  The Supervisor already referred to the 1975 and 1985 survey. The Ingersoll Home was on both of these.  It wouldn’t be just solely looking at this property but would be a moratorium on all historic property where we could say we don’t want to see any development on these properties until we get an ordinance in place.
Councilwoman O’Donnell asked if these were primarily privately owned homes.  He said it could, but that would depend on how the Board wanted to do it.  When she thinks about the moratorium, are we trying to scope it to delay this particular project?  He didn’t think so and stated that the notion of a moratorium is that we have a gap in our Comprehensive Plan and our local Zoning Ordinance.  We had the same thing with Adult Uses.  We recognized that danger and we put a moratorium in place and studied it extensively, hired a consultant, extended the moratorium by six months, then put a very sensible ordinance in place and located those businesses in the Technology zone.  It is the same thing with the situation here.  
Moratoria are about recognizing that we have a gap and we have to stop the clock for a short period of time to do an inventory and analysis of historic sites in our community and during that time also take a look at the available legislation.  The State office of Historic Preservation will come out and help communities.  Schenectady did this in 1962 with the Stockade. He supports a moratorium and feels the Town is in a much stronger position to defend historic sites in the Town with an ordinance on the books.  We can have exceptions such as places that already have a building permit or hardship exclusions.  It could be 6 months and we could begin our analysis of an inventory of historic sites, update the master plan, and put some legislation in place.  
If the building as we see it is an important and historic site, the courts have recognized the use of municipal police power to protect historical sites.  We would be doing the same thing that lots of other communities have done.  If the money isn’t there to buy it, we could put some protections in place and perhaps keep the home and some green space around it.  In fairness to the owner, property owners are entitled to get a reasonable return on their investment, but they are not entitled to get the most that they can out of it.  This is recognized in the historic preservation legislation.  If the building is put to an adaptive reuse, the owner still gets economic benefit.  If they do a $1million renovation, their income tax credits would be an approximate $200,000 federal income tax credit, and a $100,000 state income tax credit for doing a renovation of that building.  
Isn’t the restaurant an adaptive re-use?  Yes, a restaurant could be an adaptive r-use.  One of the things that are not part of a full EIS is that the applicant has done a view shed analysis for the folks on Linda Lane showing them what the property would look like after development.  The view shed of the Ingersoll, green space and building, is something that is recognized in case law that a community can protect also.  They could also get a view shed analysis from an EIS which will show us what the building will look like from Balltown Road with the buildings that will be built around it.  You wouldn’t be able to see it because it would be hidden behind the restaurants and retail that are proposed there.  Even the building itself as a restaurant as planned is looking at the back of a loading dock for retail space.  The view shed dramatically shows what we would look at and what we would see out from the building and is another aspect of what needs to be done with a full EIS.
Attorney Dickson stated that the Board must keep in mind that what the applicant has requested is permitted under our current zoning.  There is a special use permit aspect to it which is also permitted.  There is a legislative determination that permitted special uses are also permitted.  The way the zoning ordinance stands now, after completion of the SEQR process they would have to analyze the application under our present zoning ordinance.  The question of a moratorium is a separate question if we wanted to change the zoning, or enact additional legislation.  Before the Board is an application for a SUP and the threshold question before they proceed is a determination of environmental significance.  The EIS is the next step if they do a positive declaration.  If they do a negative declaration there is no EIS.  The Board must make a decision on the environmental significance.  Whether they continue to discuss a moratorium or what they want a moratorium to do and what they hope to accomplish during one, is a question they could continue to discuss if they did a positive declaration.
Councilman Chapman clarified that if the Town elected to go forward with a moratorium on historic sites we would not necessarily have to take up the question of an EIS at this point.  Attorney Dickson stated they would have to discuss whether or not in their proposed moratorium what the status of current applications would be and they would have to make a specific proposal.  
Councilwoman O’Donnell stated that we could say the moratorium is on redevelopment of lands that have properties over 100 years old. Councilman Chapman went on and stated as a stop-gap measure, we have two surveys in Town done with commissions appointed by (he believes) the Town Board to look at historic properties.  This shows that we have had a long standing interest in historic properties in Town.  Councilwoman O’Donnell  if the Town did a moratorium when they did the surveys?  Why can’t we just do a survey of properties, why do we need a moratorium?  Councilman Chapman responded that you wouldn’t necessarily have to do a moratorium.  The Town could move out right away by taking a look at updating our Comprehensive Plan and putting some zoning ordinances in place to protect historic sites in Town.  While the property is under SEQR the property could be protected.  Some communities use the SEQR process as an information gathering mechanism which they need as a community for the Planning and Town Board to make a decision.
Councilwoman Kasper stated we could do a positive declaration, do a survey without a moratorium and at the end of the SEQR process could make another decision.  
Councilman Chapman asked the Town Attorney to investigate exactly how far a community can go in a SUP in terms of protecting property.  If we deem this as an important historic & cultural resource and we don’t want these other buildings built around it, we want to see square foot of space reduced considerably, keeping the building as it is with some of the green space around it.  Perhaps there is allowance for the property owner to get what is a reasonable return on investment with one or two buildings in the back.
Councilwoman O’Donnell asked (in an effort to understand) if today the current owner of the property wanted to demolish the building could they do it? Attorney Dickson responded not with the SEQR process undone.  There is a status quo and there should be no permits for demolition or anything like that issued during the SEQR review.  They would have to get a demolition permit from the Building Department. He reviewed the Freihofer building in Troy, where the Freihofer Company owned it and sought a demolition permit and there was controversy as to whether or not the demolition permit required SEQR.  It is his understanding that the courts held that after reviewing the Troy City Charter that it was a ministerial act that did not.  If they do a positive declaration, there is necessarily some time that goes on during that review.
If the Board votes on a positive declaration, they are stopping the clock on the SUP.  
Supervisor Smith stated that he believes the CAC did an excellent job in laying out some significant issues on this project.  There are a few extraneous issues that are not subject to the full environmental impact statement.  Overall they raised some significant issues.  In his 7 years here, he believes that the developer has acted responsibly and provided many reams of paper in response to the CAC report.  Some assume that the developer paid for these responses so they have no integrity in the archeological firm and they do what the developer wants. He has what he believes is a significant amount of information to make a decision and he will probably present a resolution for a negative declaration.  If the negative declaration loses, then we will go forward with a positive declaration and he has no problem.  He does think it is important on March 13 that the developer gets an answer on a negative or positive declaration.  As Chairman of the Planning Committee if he offers a resolution for a negative declaration and it loses, that means that someone can then offer a resolution for a positive declaration.  Should it lose, Kasper would like to offer a positive declaration on Mach 13.  Depending on the response, there will be a resolution offered on the SUP.  
Councilwoman O’Donnell stated we will be moving in some kind of direction, either for the study, or for the SUP.  It is not pushing it, we have to move forward. If we want to survey the historical properties then we should survey them separately and she feels we don’t need a moratorium to survey historical properties.
Attorney Dickson stated that the scoping sessions would be to scope out the extent of the EIS and we could do what we determine to be the potential significance and environmental impacts of this application. The impairment of a historical asset is defined in the SEQR regulations as an environment impact.
Councilman Chapman noted that regarding a demolition permit, there are communities that as part of their historic preservation have a delay as protection if you have identified a historic site, after applying for a demolition permit.  We might want to consider that any building over 30,000SF should be a SUP as well too.  If we had a requirement that any building over 30,000SF required a SUP, and SEQR is part of the SUP process, then if someone wanted to build a big box, it would be under the SEQR regulations.  It is an additional community protection and we wouldn’t be under the threat of either destruction or the threat of a big box.
        Councilwoman Freund asked what is the point of going through a historic survey and determining what buildings are historic if they are privately owned?  To protect them  even though they haven’t for protection?  Would we be able to say they can’t do anything with that house even if they haven’t asked to be listed historically?
        Councilman Chapman stated that some communities have made it a case if it is a private home – not all but some have said that if the owner of the property doesn’t want it to be a landmark preservation that they were not made that.  Other communities dictate certain houses have tremendous historic and cultural significance so we would want to designate it as a historic landmark (such as the Paul Schaeffer House, or other private homes).  Historic locations in Town are the Niskayuna Reformed Church, the parsonage next to the First Baptist Church, the Ingersoll Home, the Boathouse next to Aqueduct Park, the Grange, the Train Station and we have a number of homes.   Part of it is the understanding that these are community resources and as a Town Board we are protecting historic and cultural resources that really belong to the public and a resource for all of us.  The State Office of Historic Preservation helps communities do these projects
Councilwoman O’Donnell felt that it is a lot to consider when you get to private residents.  
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        Supervisor Smith stated it would have been great if this was done during the Comprehensive Plan revision.
Councilman Chapman continued that he supports going forward with a full EIS.  The economic analysis has holes in it, there is an aquifer underneath and without much discussion and consideration of alternatives, is something that we would get in a full EIS.   Even if we move through with a positive EIS, as a community we should get started.  We are not too late to protect these sights.
Supervisor Smith cited an article he had provided the Board from the New York Times that stated that many historic buildings are falling into disrepair because every time someone decides that there is a building that should be saved the politicians decide to preserve the building.  Colonial Williamsburg is selling off part of their site.  We have two homes in the Hudson Valley that are falling into disrepair because of lack of money to support them. We have a historic district in Schenectady County that is a major tourist attraction called The Stockade.  The County is going forward with the Mabee Farm. We have to work on the Grange to bring that back and fnally, after all these years when no one did anything with it.  He would love to repair the train station so we could use it for art shows.  There has been discussion of the Aqueduct House.  How many of these do we do before people say there is not enough money to do all these things?  The Times Union followed up the Times story saying the same thing; that there are so many of these. One preservationist said people do not want to go to them anymore.  Yes, it is important that we maintain a part of our history.  Councilman Chapman talked about buying the Home because it is only $26 per year tax burden for each $135,000 assessed home.  This equals a 7% tax increase just for this along with the upkeep of whatever plan he has to do with it such as a learning center, a museum, etc. which means another tax increase.  In this Town we are facing infrastructure repair and asphalt costs up 30%.   
Councilman Chapman stated this is an important historic and cultural resource and he already gave the Board one suggestion that it could be rehabilitated as apartments for older adults who want to come back to the northeast.  Mr. Roth owns the building and he won’t want to let it sit there.  He’s got a substantial tax deduction by doing something with that.  We would tell him, it’s a historic building, we want it protected, we don’t want it torn down, we want some of the green space around it to stay there and we would like to work with him on an adaptive reuse of this building.  This is an economic value for him and not all 12 acres would have to be saved, maybe some acreage stays with the house and some could be developed as professional offices or something on the other parts so he gets a reasonable economic return on his property which is what the State law says.  
Supervisor Smith said he thinks we are working on an adaptive reuse of the building  as a restaurant.  

SPECIAL DISTRICTS
        The following resolutions were approved with a vote of five ayes unless otherwise noted.
        Resolution 2007-61 approved the purchase of a 20 foot steel trench box for use by the Water & Sewer Department from A. J. Vel, at a cost not to exceed $10,000.

        Resolution 2007-62, authorizes the purchase of a replacement gear reducer drive unit from Kaman Industrial Technologies, for the Wastewater Treatment Plant at a cost not to exceed $4,500.

GENERAL RESOLUTIONS
        Resolution 2007-63 appoints Daniel McManus as Police Sergeant in the Police Department, on a permanent basis, effective immediately.

        Resolution 2007-64 calls for a public hearing March 27 at 7 p.m. to consider the amendment of the Zoning Ordinance to update Stormwater Management compatible with New York State requirements.

        Resolution 2007-65 calls for a public hearing to amend the Code regarding subdivision regulations on March 27 at 7:05 p.m.

        Resolution 2007-66 authorizes a Sense of the Board resolution for the disposition of contaminated soil located at the Knolls Atomic Power Laboratory.

        Resolution 2007-67 authorizes retaining services for labor and equipment to assist during emergency repairs for the Water & Sewer Department from Thomas J. loehr Excavating, Paul Luskin Paving, and authorizes the expenditure up to a toal amount not to exceed $19,000.

        At this time, Supervisor Smith and the Board voted to go into Executive Session to discussion a contract matter.
        There being no further business to come before the Board, Supervisor Smith adjourned the meeting.

                                        Helen F. Kopke, Town Clerk


 
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