Forestburgh



*****DRAFT*****

PUBLIC HEARING UPON

PROPOSED LOCAL LAW # 1 OF 2017 ENTITLED

“A SIX MONTH MORATORIUM ON THE PROCESSING OF APPLICATIONS FOR, AND THE

ISSUANCE OF ANY APPROVALS OR PERMITS FOR, SOLAR FARMS AND SOLAR POWER PLANTS

WITHIN THE TOWN OF FORESTBURGH”

TOWN OF FORESTBURGH, SULLIVAN COUNTY, NEW YORK

February 2, 2017

Supervisor Hogue opened the public hearing at 7:05 p.m.

Roll Call: Present – Daniel S. Hogue, Jr., Supervisor

Katherine Barnhart, Councilwoman

John W. Galligan, Councilman

Susan Parks Landis, Councilwoman

Steve Budofsky, Councilman

Absent – None

Recording

Secretary – Joanne K. Nagoda, Town Clerk

Others

Present – E. Danielle Jose, Attorney for the Town

Richard Robbins, Planning Board Chairman

Supervisor Hogue explained it is for a possible moratorium for commercial size solar projects within the Town of Forestburgh.

Anthony Cardoso – Is anyone actually looking to do one? Supervisor Hogue stated there is on proposed in the vicinity of the firehouse on the other side of the road. They have submitted an incomplete application to the planning board. We had discussed this prior to the submittal of their application.

Gillian Kaiser – I just want to say that I think the town board is being prudent by taking the time to investigate all that could be a possible impact, and I applaud you for keeping our best interests in mind.

Councilwoman Barnhart wanted to make it perfectly clear that there is currently no application before the planning board. Councilman Galligan stated there is an application. Chairman Robbins stated there is something that was submitted that says “application” but it was incomplete. So it does not constitute a submitted application. They sent us some stuff, but it’s incomplete so it can’t be on the agenda.

Sheldon Pasternack – After you finish this, you might want to take up a discussion for wind farms. It the same type of thing and they are very prevalent but they are very noisy. This is information from other towns and what they did too.

Attorney Jose – I just want to make sure that the letter from the attorney representing the solar applicant gets read into the minutes.

January 12, 2017

Hon. Supervisor Daniel S. Hogue Jr.

And Members of the Town Board

Town of Forestburgh

332 King Road

Forestburgh, NY 12777

RE: Cypress Creek Renewables

Comments to Proposed Solar Public Utility Facilities Moratorium

Dear Supervisor Hogue

and Members of the Town Board:

We represent Cypress Creek Renewables (“Cypress Creek”) in connection with its efforts to develop a solar farm (“Solar Farm”) in the Town of Forestburgh at 2496 State Route 42. Preliminary meetings with Building Department officials indicate that the Solar Farm may be permitted by special permit and site plan approval. Cypress Creek attended a Sketch Plan Review meeting on the Solar Farm on December 13, 2016 and submitted a full Site Plan and Special Use Permit Application to the Planning Board on January 11, 2017. The Solar Farm is presently scheduled for consideration at the Planning Board’s January 24, 2017 agenda. We write to express our concern over the Town’s stated intention to adopt a moratorium (“Proposed Moratorium”) barring the consideration or approval of solar power facilities such as the Solar Farm in the Town of Forestburgh. Cypress Creek has a vital interest in the Solar Farm and would be adversely affected by the enactment of the Proposed Moratorium.

We respectfully submit that the adoption of the Proposed Moratorium is not warranted by current circumstances and, under the controlling case law of this jurisdiction, would constitute an invalid exercise of the Town’s police powers. The courts have long held that municipal land use moratoria may not be enacted in the absence of a genuine crisis, emergency, or dire necessity. “To justify interference with the beneficial enjoyment of property the municipality must establish that it has acted in response to a dire necessity, that its action is reasonably calculated to alleviate or prevent the crisis condition, and that it is presently taking steps to rectify the problem.” Duke v. Town of Huntington, 153 Misc.2d 521, 581 N.Y.S.2d 978 (N.Y. Sup. 1991) (emphasis supplied). The Second Department’s holding in a case invalidating a municipal moratorium enacted in the absence of an emergency is instructive on this point:

“Fundamentally, [the moratorium] clearly was not adopted for the proper and reasonable purpose of responding to a genuine crisis or dire necessity. Although the moratorium on antennas purports to protect the health, safety and welfare of Village residents, there is not a scintilla of evidence in the record indicating that the installation of cellular antennas in accordance with the plaintiff’s proposed plan would be inimical to the well-being of the Village citizenry.”

Cellular Telephone Co. v. Village of Tarrytown, 209 A.D.2d 57, 67, 624 N.Y.S.2d 170 (2d Dep’t 1995) (emphasis supplied).

The Proposed Moratorium is, therefore, without justification because no “dire emergency” or “genuine crisis” sufficient to justify municipal interference with the beneficial enjoyment of property exists. There is simply no supporting proof or evidence in the record to justify the conclusion that solar power public utility facilities are inimical to the well-being of the community. A moratorium cannot be imposed under such circumstances. Tarrytown, 209 A.D.2d 57, 67, (striking down a moratorium where there was “not a scintilla of evidence in the record” to establish adverse effects of proposed public utility facility); Matter of Belle Harbor Realty Corp. v. Kerr, 35 N.Y.2d 507, 512, 364 N.Y.S.2d 160 (1974) (“[A] municipality may not invoke its police powers solely as a pretext to assuage strident community opposition.”). Nor may a moratorium be imposed based upon mere speculation or perception of adverse risks to the community. Tarrytown, 209 A.D.2d 57, 67.

In fact, the impacts associated with the proposed passive photovoltaic use are manifestly less intensive than those associated with traditional public utility uses such as coal powered electric plants which are already permitted in the Town of Forestburgh. See e.g., Town of Forestburgh Zoning Code (“Zoning Code”), Sections 85-7(A)(3) and 85-7(C)(5). Accordingly, there is no evidentiary foundation to justify interference with the beneficial enjoyment of private property and the imposition of the Proposed Moratorium. See, Tarrytown, 209 A.D.2d 57, 67.

And, even if there were evidence in the record to support the Proposed Moratorium’s claim of adverse effects to the community, no “dire emergency” exists because the Zoning Code already contains extensive land use controls to address potential impacts. For example, Section 85-27 of the Zoning Code, entitled “Site plan requirements and special use standards,” enumerates an exhaustive list of environmental, health, and safety findings that must be made by the Planning Board prior to issuance of a special permit. Likewise, Section 85-29 of the Zoning Code, entitled “Site plan requirements”, also includes a sweeping array of additional protections to ensure that proposed projects do not adversely affect the well-being of the community. In addition, under New York State law, the Planning Board will be required to undertake State Environmental Quality Review Act review of any proposed solar power public utility facility. See e.g., 6 NYCRR 617.2.b; SEQR Handbook, at 176-177. The Town of Forestburgh is, therefore, amply protected with respect to any concerns underlying the Proposed Moratorium and there is no justification for the Proposed Moratorium’s adoption.

Based on the foregoing, we respectfully request that the Town Board not adopt the Proposed Moratorium. In the event that any such moratorium is enacted, we request that the Proposed Moratorium include an exemption for pending and previously submitted applications such as the Solar Farm which would allow such facilities to proceed under the existing Zoning Code. It is our understanding that the Cypress Creek Solar Farm is the only pending and fully submitted solar application in the Town of Forestburgh and, therefore, the impact of such an exemption would be minimal. As noted above, the Zoning Code already contains extensive land use controls sufficient to address the potential impacts of a single solar farm and already permits significantly more intensive uses such as traditional coal powered electric plants whose impacts are far greater.

We also respectfully submit that, if adopted, the duration of the Proposed Moratorium should not exceed three (3) months. “Although interim or stop-gap legislation is permissible in order to maintain the status quo pending the preparation and enactment of a comprehensive zoning ordinance, the life of such legislation may not exceed a reasonable period of time.” Lakeview Apts. v. Town of Stanford, 108 A.D.2d 914, 485 N.Y.S.2d 801 (2d Dep’t 1985).

We thank you for your consideration. Kindly make a copy of this letter a part of the official administrative record in connection with any action taken on the Proposed Moratorium. We also respectfully request that you provide to our offices any documentation being relied upon by the Town to support the Proposed Moratorium as well as any drafts of legislation enacted during the pendency of the Proposed Moratorium should the Proposed Moratorium be enacted. Please also provide the dates of any upcoming hearings or public meetings on these matters.

Respectfully submitted,

SNYDER & SNYDER, LLP

Douglas W. Warden, Esq.

Todd Petrowsky – Will this moratorium apply to the incomplete application? Attorney Jose responded that the proposed local law addresses pending applications, although we don’t have a pending application. Even if it were timely and filed, it would apply to them as well. This moratorium is for six months and a committee has been formed that will look at drafting appropriate legislation to deal with solar farms and the town. There are two provisions within the local law to allow for two extensions by resolution of the town board if the town board feels the committee needs more time, it is a three month extension each time. Supervisor Hogue stated the committee was supposed to meet last Monday but due to the weather it was cancelled. They are meeting tomorrow and Monday nights. Councilman Budofsky stated tomorrow at 4:00 p.m. and Monday night at 7:00 p.m. Supervisor Hogue state it is our hope to have something in place before the six months and if that happens the moratorium could be lifted early. Mr. Petrowsky asked if there was anything covering private solar installation. Attorney Jose replied that the local law does not preclude the issuance of any permits for small scale solar, as defined that would be small scale or homes.

MOTION by Councilman Galligan, seconded by Councilwoman Landis to close the public hearing at 7:23 p.m.

Respectfully submitted,

Joanne K. Nagoda,

Town Clerk

*****DRAFT*****

The Town of Forestburgh held their regular monthly meeting on Thursday, February 2, 2017 in the town hall.

Supervisor Hogue called the regular meeting to order at 7:24 p.m.

Roll Call: Present – Daniel S. Hogue, Jr., Supervisor

Katherine Barnhart, Councilwoman

John W. Galligan, Councilman

Susan Parks Landis, Councilwoman

Steve Budofsky, Councilman

Absent – None

Recording

Secretary – Joanne K. Nagoda, Town Clerk

Others

Present – E. Danielle Jose, Attorney for the Town

Richard Robbins, Planning Board Chairman

PUBLIC COMMENT – None

REPORTS –

Supervisor Hogue submitted a report of financial activity for the month of January 2017.

Town Clerk, Joanne Nagoda submitted a monthly report of clerk fees and activity for the month of January 2017.

Justices Carroll and Gunther submitted a report of justice court fees and activity for the month of January 20217.

MINUTES – Town Clerk, Joanne Nagoda submitted minutes from the December 15, 2016 meeting and the December 28th year end meeting and the January 5, 2017 re-organizational meeting for review.

MOTION by Councilwoman Landis, seconded by Councilman Budofsky to accept the December 15, 2016 minutes as amended. Vote: 5 ayes – 0 nays. Motion carried.

MOTION by Councilwoman Barnhart, seconded by Councilman Galligan to accept the minutes of December 28, 2016 year end meeting. Vote: 4 ayes – 0 nays. Councilwoman Landis abstained as she was not in attendance at that meeting. The board decided to hold off on the January 2017 re-organizational minutes.

GENERAL FUND VOUCHERS - # 327 – 336 in the sum of $6,166.62 for 2016, and # 5 – 26 in the sum of $15,894.38 in abstract # 15 and 2 respectively were audited for payment. MOTION by Councilwoman Barnhart, seconded by Councilman Budofsky to pay general fund vouchers. Vote: 5 ayes – 0 nays. Motion carried.

HIGHWAY FUND VOUCHERS - #178 – 185 in the sum of $39,802.23 as set forth in abstract # 13 for the year 2016 and vouchers # 1 – 15 in the sum of $65,378.14 as set forth in abstract # 1 of 2017 were reviewed. MOTION by Councilman Galligan, seconded by Councilwoman Landis to accept the highway fund vouchers. Vote: 5 ayes – 0 nays. Motion carried.

CORRESPONDENCE –

Highway Superintendent Joe Ruggeri submitted a letter stating that they will be submitting quotes for a mower and trailer. The highway department also has a trailer that was received from the Forestburgh Fire Department about five years ago. Now they want the trailer back, there is no paperwork on the trailer other than the registration when the town registered it. Since no one knows the story of the trailer, I will return it to the fire company. I will also be submitting to the newsletter a reminder for residents to not plow snow across or into the roadways. We need to address the repairs needed to the salt shed – either the town board or I should request quotes and fix it now before it gets worse and will cost more to repair it. MOTION by Councilman Galligan, seconded by Councilwoman Barnhart to authorize the highway superintendent to return the trailer to the Forestburgh Fire Company. Vote: 5 ayes – 0 nays. Motion carried.

Clerk Nagoda read a letter from the Association of Towns with regard to Governor Cuomo’s attack on towns and local government for the high costs of taxes in the State of New York and requiring towns to create a voter approved efficiency plan. The letter goes on to explain why this proposal will not bring tax relief and fails to address the real reason for high property taxes. Towns have done their part by taking care of state mandates, increased efficiency, while dealing with decreased state aid and the tax cap. Town’s shared services agreements have saved towns over $17 billion dollars. Local governments are not the problem. Until actual costs drivers are addressed property taxes in this state will remain among the highest in the nation. If the state wants tax relief another unfunded state mandate is not the answer. They encourage everyone to attend the Annual Meeting and conference this year more than ever.

A letter was received from Claudia Hillers of Dill Road commending Highway Superintendent, Joe Ruggeri for the outstanding job he and his crew have done keeping our roads safe and clear. I appreciate his hard work for our community.

UNFINISHED BUSINESS

ASSOCIATION OF TOWNS CONFERENCE – In January we did not appoint a delegate to attend the annual conference and business meeting of the Association of Towns. Councilwoman Barnhart has stated that she would like to attend the conference. MOTION by Councilman Galligan, seconded by Councilman Budofsky to appoint Councilwoman Barnhart as a delegate to attend the annual conference and meeting of the Association of Towns. Vote: 5 ayes – 0 nays. Motion carried.

SULLIVAN RENAISSANCE – Supervisor Hogue stated that this Monday we filed the application for the Sullivan Renaissance municipal funding grant application. We are eligible for a grant up to $15,000. Our focus will be on code enforcement and upkeep on previous renaissance projects. We are asking that the seniors and the youth program, along with anyone else in town who wants to join. I would like to see the youth program start a small vegetable garden down by the pool shed. So the application is in and we will hope for the best.

HOEY-DEGRAW WATER WORKS – There has been more discussion on this matter. Attorney Jose stated that she still doesn’t have the maps. They did send an e-mail with a google map attached but it didn’t show much of anything. They have assured us they will send a detailed physical description. Matter tabled.

INDOOR RECREATION ZONING – Attorney Jose stated that she forwarded a proposal to the Kaiser’s, however she does not believe that it is hitting the mark. We have more work to do but she hopes the board will all look at it and give me your comments and feedback. Supervisor Hogue stated that he looked at it and it seemed to address more outdoor than indoor. Mrs. Kaiser asked if the legislation is being structured to define both indoor and outdoor recreation. Supervisor Hogue replied that we defined outdoor recreation to some extent already but we are trying to define indoor recreation that would also encompass bowling alleys, ice skating, etc. as indoor recreation. An indoor shooting range is also an indoor recreational use. Attorney Jose added that we do that in the proposed law, it addresses indoor and outdoor privately run businesses. We talk about playing fields, arena’s, courts, dance halls, gymnasiums, health spas, shooting ranges, batting cages, then the law that I wrote went on to regulate shooting ranges. If it mainly addresses outdoor more than indoor we will have to address it and make changes. Councilwoman Landis asked if last time, didn’t we discuss having retail areas. Attorney Jose replied when the board reviewed the kennel law, there were adjustments made for special use permits because I don’t think it was set up properly. If the board adopts the kennel law, then retail space will be permitted with the special use permit. Food service will also be permitted with a special use permit. Mrs. Kaiser asked if it will also address staff housing. Supervisor Hogue stated with their proposal there is residence on the site also and does out zoning address residential living on recreational property. I personally think it’s a good idea to have a caretaker or the owner is such proximity to their business. Just for security purposes. Mrs. Kaiser added that tent days proposed having staff housing in their presentation to the planning board, and I don’t know if it’s something that should be addressed in this indoor/outdoor recreation or is it not appropriate to be in this. Attorney Jose replied she thinks it could be included but doesn’t necessarily want to make it a requirement. If you own a bowling alley, you don’t want someone to be required to live there. Mrs. Kaiser replied if it isn’t listed in our code, it’s not permissible, so if tent days goes into their second phase and in ours as well, we already addressed it and it would cover both projects. Attorney Jose stated that she can work that in as well. Councilwoman Barnhart stated she is confused – are we making a decision on indoor/outdoor for both? WE don’t want to do it in this loose fashion. What’s the process? Supervisor Hogue replied first we have draft a local law that we are somewhat comfortable with, then like the other ones, we’d send it on to the planning board for review and they would make their comments known, just like we are doing with the kennel law and the PDD law. Councilwoman Barnhart stated that Attorney Jose should include indoor and outdoor at this point. Supervisor Hogue replied if that is what the board would like. Councilwoman Landis stated if we are addressing it, we might as well do both of them. Supervisor Hogue replied if the board wishes to address commercial indoor and outdoor, we should do it. Sheldon Pasternack stated that the problem with an outdoor gun range is typically who is going to regulate the noise. You have to have someone to enforce it and a way to measure it, so it doesn’t exceed what the town says is the maximum. I don’t know why the board is discussing an outdoor range if that isn’t their proposal. You are basically opening up a can of worms. Supervisor Hogue stated that this does address a bit on noise issue. Noise is a major concern. Attorney Jose asked so you want indoor only? Councilwoman Barnhart replied that she didn’t feel we have enough information to make that decision. Supervisor Hogue stated in this law we are defining indoor commercial recreation. That was our original intent. Not solely an indoor shooting range, it could encompass other indoor recreational uses. Basketball courts, ice skating rink, a shooting range could be listed in that whole list of indoor recreational uses. Attorney Jose stated that what was discussed in the December meeting was indoor and outdoor privately run businesses like playing fields, golf courses, do you want me to remove all of the outdoor stuff and for now just deal with indoor recreation? Councilwoman Barnhart stated we have to start somewhere, if you do indoor and outdoor and later we decide we don’t want outdoor, I think we can do it that way. Clerk Nagoda asked if by omitting outdoor does that preclude tent days from moving forward should an application be forth coming. Planning Board Chair Richard Robbins stated that tent days is camping and we have standards already for that. Their application has not yet been seen but was seen in a sketch plan fashion was compliant with the terms of the statute that have now. What we learned from the ASTI application is that there is no definition for outdoor recreation that fight turned on what do you mean by that. Outdoor has a definition but indoor is a different kettle of fish. The things that govern it are different. It’s recreation but the impact on the community is quite different if it confined to a building or if it’s outside. I think ultimately we had to look back to the individuals who were involved when the code was originally passed and get their thoughts on what was originally intended at that time that was never written down. So, yes it’s a term that deserves definition whether you do it now or later it’s up to you obviously. Maybe this is a good time. If you are talking about shooting ranges in one setting doesn’t mean it doesn’t apply in the other setting. Anthony Cardoso asked if this will be a permitted use in all zoning districts or just commercially focused zoning districts. Will it be permitted in all districts or just special zoning districts? Attorney Jose replied that she had it the RR-1 and B-1 district. Supervisor Hogue stated that us being small, like many other small towns are relinquished to spot zoning, with special uses being granted here and there. That how it usually works out in smaller towns, we don’t have a large business district or a downtown area. Attorney Jose stated she would work on definitions. Matter tabled.

PROPOSED LOCAL LAW # 1 OF 2017 – SOLAR MORATORIUM – Clerk Nagoda read the following resolution:

RESOLUTION # 4

RESOLUTION ADOPTING LOCAL LAW NO. 1 OF THE YEAR 2017, IMPOSING A TEMPORARY TOWN-WIDE MORATORIUM ON THE PROCESSING OF APPLICATIONS FOR AND THE ISSUANCE OF ANY APPROVALS OR PERMITS FOR SOLAR FARMS AND SOLAR POWER PLANTS.

WHEREAS, the Town Board of the Town of Forestburgh duly introduced a proposed Local Law entitled “A Local Law Imposing a Six-month Moratorium on the Processing of Applications For, and the Issuance of Any Approvals or Permits For, Solar Farms and Solar Power Plants in the Town of Forestburgh”; and

WHEREAS, the Public Hearing was duly advertised in the Sullivan County Democrat, the official newspaper of the Town; and

WHEREAS, the Public Hearing was held on February 2, 2017, and all parties in attendance were permitted an opportunity to speak on behalf of or in opposition to said proposed Local Law or any part thereof; and

WHEREAS, the Proposed Action is a Type II Action not subject to environmental review pursuant to 6 N.Y.C.R.R. §617.5 (c)(30); and

WHEREAS, the notice requirements of Town Law §264 have been complied with; and

WHEREAS, the proposed Local Law was referred to the Town of Forestburgh Planning Board for comment which by report, returned a positive recommendation; and

WHEREAS, the proposed Local Law was referred to Sullivan County Division of Planning and Environmental Management for comment which by memo dated January 17, 2017, approved the action; and

WHEREAS, the Town Board of the Town of Forestburgh after due deliberation finds that it is in the best interest of the Town to adopt said Local Law; and

WHEREAS, said proposed Local Law has been on the desks of the members of the Town Board of the Town of Forestburgh for at least seven (7) days exclusive of Sunday prior to the adoption of this resolution.

NOW, THEREFORE, BE IT

RESOLVED, that the Town Board of the Town of Forestburgh hereby adopts Local Law No. 1 of the Year 2017 entitled “A Local Law Imposing a Six-month Moratorium on the Processing of Applications For, and the Issuance of Any Approvals or Permits For, Solar Farms and Solar Power Plants in the Town of Forestburgh”, a copy of which is attached hereto and made part of this Resolution; and be it further

RESOLVED, that the Town Clerk is directed to enter said Local Law in the minutes of this meeting and in the Local Law Book for the Town of Forestburgh and to give due notice of the adoption of said Local Law to the Secretary of the State of New York and General Code Services.

A LOCAL LAW IMPOSING AN SIX-MONTH MORATORIUM ON THE PROCESSING OF APPLICATIONS FOR, AND THE ISSUANCE OF ANY APPROVALS OR PERMITS FOR, SOLAR FARMS AND SOLAR POWER PLANTS IN THE TOWN OF FORESTBURGH

Be it enacted by the Town Board of the Town of Forestburgh as follows:

Section 1. Title

This Local Law shall be referred to as a “Local Law Imposing a Six Month Moratorium on the Processing of Applications for, and the Issuance of any Approvals or Permits for, Solar Farms and Solar Power Plants in the Town of Forestburgh”.

Section 2. Purpose and Intent

Pursuant to the statutory and common law powers vested in the Town of Forestburgh (the “Town”) to regulate and control land uses and to protect the health, safety and welfare of its residents, the Town Board of the Town hereby declares a temporary six (6) month moratorium on the processing or approval of applications for building permits, special use permits, special permits, variances, site plan approvals, subdivision approvals or Planned District Development (PDD) approvals related to the undertaking, establishment, placement, development, excavation, enlargement, construction or erection of Solar Farms and Solar Power Plants in the Town.

The Town Board desires to effectuate its Comprehensive Plan and address, in a careful manner, the undertaking, establishment, siting, placement, construction, enlargement and erection of Solar Farms and Solar Power Plants on a comprehensive Town-wide basis, rather than on an ad hoc basis, and to adopt new land use regulations to specifically regulate the same.

The Town Board finds that if development of Solar Farms and Solar Power Plants in the Town proceeds under the current Zoning Law it will lessen the ability of the Town to plan for its orderly development and protect the public health, safety and general welfare of the Town’s citizens. Thus, the Town Board further finds and determines that it needs a period of time covered by the moratorium imposed herein in order to carefully review and complete the amendment of the Zoning Law to adopt regulations for Solar Farms and Solar Power Plants, schedule and hold the required public hearing(s), perform the appropriate environmental reviews, comply with applicable provisions of law, adopt the local law(s), and file the same with the Secretary of State of the State of New York.

The Town Board finds that pursuant to 6 NYCRR 617.5(c)(30) the adoption of a moratorium on land development or construction is a Type II action under the New York State Environmental Quality Review Act (“SEQRA”) which has been determined not to have a significant impact on the environment or is otherwise precluded from environmental review under Environmental Conservation Law, Article 8 and is therefore not subject to review under 6 NYCRR Part 617 or Environmental Conservation Law Article 8.

Section 3. Authority

This moratorium is enacted by the Town Board pursuant to its authority to adopt local laws under Article IX of the New York State Constitution and Municipal Home Rule Law Section 10.

Section 4. Scope of Controls

A. For a period of six (6) months from the effective date of this Local Law, no board, officer or agency of the Town shall accept, process, consider or approve applications for building permits, special use permits, special permits, variances, site plan approvals, subdivision approvals or Planned District Development (PDD) approvals related to the undertaking, establishment, placement, development, excavation, enlargement, construction or erection of the following:

i) Solar Farms and Solar Power Plants

B. The review or processing of any pending applications for building permits, special use permits, special permits, variances, site plan approvals, subdivision approvals Planned District Development (PDD) approvals related to the undertaking, establishment, placement, development, excavation, enlargement, construction or erection of the uses, activities and operations set forth in Section 4(A)(I) of the Local Law shall be suspended for the duration of this moratorium.

C. This moratorium shall not apply to Certificates of Occupancy for any and all construction pursuant to building permits issued prior to the effective date of this local law or the issuance of any building permit for the renovation or repair of any lawfully existing structure otherwise covered by this local law.

D. The Town Board reserves the right to direct the Town Building Inspector/Code Enforcement Officer to revoke or rescind any building permits or certificates of occupancy issued in violation of this Local Law.

E. This Local Law does not regulate or preclude the issuance of permits for “Small-Scale Solar”.

F. For purposes of this local law, the following terms shall mean:

PHOTOVOLTAIC SYSTEM: A solar energy system that produces electricity by the use of semiconductor devices, called photovoltaic cells, that generate electricity whenever light strikes them.

SMALL-SCALE SOLAR: Solar photovoltaic systems that produce up to twenty kilowatts (kW) per hour of energy or solar-thermal systems which primarily serve the building to which they are attached.

SOLAR FARM OR SOLAR POWER PLANT: Energy generation facility or area of land principally used to convert solar energy to electricity, whether by photovoltaics, concentrating solar thermal devices or various experimental solar technologies, with the primary purpose of wholesale or retail sale of electricity.

Section 5. Hardship

A. Should any owner of property affected by this Local Law suffer an unnecessary hardship in the way of carrying out the strict letter of this Local Law, then the owner of said property may apply to the Town Board of the Town in writing for a variance from strict compliance with this Local Law upon submission of proof of such unnecessary hardship. For the purposes of this Local Law, unnecessary hardship shall not be the mere delay in being permitted to make an application or waiting for a decision on the application for a variance, special use permit, special permit, site plan, subdivision, Planned District Development (PDD) approval or other permit during the period of the moratorium imposed by this Local Law.

B. Procedure. Upon submission of a written application to the Town Clerk by the property owner seeking a variance from this Local Law, the Town Board shall, within thirty (30) days of receipt of said application, schedule a Public Hearing on said application upon five (5) days’ written notice in the official newspaper of the Town. At said Public Hearing, the property owner and any other parties wishing to present evidence with regard to the application shall have an opportunity to be heard, and the Town Board shall, within thirty (30) days of the close of said Public Hearing, render its decision either granting or denying the application for a variance from the strict requirements of this Local Law. If the Town Board determines that a property owner will suffer an unnecessary hardship if this Local Law is strictly applied to a particular property, then the Town Board shall grant a variance of the application of this Local Law to a particular property, then the Town Board shall grant a variance of the application of this Local Law to the minimum extent necessary to provide the property owner relief from strict compliance with this Local Law.

Section 6. Term

The moratorium imposed by this Local Law shall be in effect for a period of six (6) months from the effective date of this Local Law. This local law is subject to review and renewal by the Town Board of the Town of Forestburgh for two (2) additional 90 day extensions by Town Board Resolution.

Section 7. Penalties

Any person, firm or corporation that shall undertake, establish, place, develop, excavate, enlarge, construct or erect anything regulated within the “Scope of Controls” listed in Section 4 above in violation of the provisions of this Local Law or shall otherwise violate any of the provisions of this Local Law shall:

A. Be guilty if an offense, punishable by a fine not exceeding two hundred and fifty dollars ($250.00) or imprisonment for a period not to exceed 15 days, or both. Each day’s continued violation shall constitute a separate offense, and

B. Be subject to appropriate action or proceedings by the proper authorities of the Town to enjoin, correct, or abate any violation(s).

Section 8. Validity

The invalidity of any provision of this Local Law shall not affect the validity of any other provisions of this Local Law that can be given effect without such invalid provision.

Section 9. Suspension and Supersession of Other Laws

All local laws in conflict with the provisions of this Local Law area hereby superseded and suspended for a period of six (6) months from the effective date of this Local law. This Local Law also supersedes, amends, and takes precedence over any inconsistent provisions of New York Town Law under the Town’s Municipal Home Rule powers, pursuant to Municipal Home Rule Law §10(1)(ii)(d)(3), §10(1)(ii)(a)(14), and §22.

In particular, this Local Law supersedes any inconsistent provisions of New York Town Law §267, §267-a, §267-b, §274-a, §274-b, §276 and §277 for the purpose of vesting the Town Board of the Town of Forestburgh with the authority to accept, hear, process and determine applications for variances from this Local Law.

Section 10. Effective Date

This Local Law shall take effect immediately when it is filed in the Officer of the New York State Secretary of State in accordance with Section 27 of the Municipal Home Rule Law.

MOTION by Councilman Budofsky, seconded by Councilwoman Barnhart to adopt said resolution and Local Law #1 of 2017.

Councilman Galligan stated that he can’t support this as it is and recognizes that he is in the minority, but feels it is not in the best interest of the town. He feels it is subject to litigation.

Vote: 4 ayes – 1 nay. Motion carried.

PROPOSED LOCAL LAW KENNELS –

RESOLUTION # 5

A RESOLUTION OF THE TOWN BOARD OF THE TOWN OF FORESTBURGH SETTING A PUBLIC HEARING WITH RESPECT TO PROPOSED LOCAL LAW #2 OF 2017 ENTITLED “KENNELS”.

WHEREAS, the Town Board of the Town of Forestburgh is considering the adoption of a new local law providing for kennels within the Town of Forestburgh, and said action, if approved, would appear to constitute a Type I action under the New York State Environmental Quality Review Act (“SEQRA”); and

WHEREAS, the Town Board of the Town of Forestburgh has previously declared itself lead agency with respect to the proposed action and has received no objection to same after notifying involved and interested agencies; and

WHEREAS, The Town Board of the Town of Forestburgh wishes to set a time and place for a public hearing with respect to proposed Local Law # 2 of 2017 entitled “Kennels”, so that the public may be heard and so that environmental impact of the proposed action can be considered; and

WHEREAS, the Town Board of the Town of Forestburgh has also determined that the proposed action is subject to review by the Sullivan County Division of Planning and Environmental Management for pursuant to General Municipal Law 239-m.

NOW, THEREFORE, it is hereby

RESOLVED, that the public hearing be held by the Town Board of the Town of Forestburgh with respect to the aforesaid proposed Local Law at 7:05 p.m., on March 2, 2017, at the Town of Forestburgh Town Hall, 332 King Rd., Forestburgh, New York; and it is further

RESOLVED, that the environmental; significance of said proposed Local Law will be reviewed by the Town Board of the Town of Forestburgh following said public hearing; and it is further

RESOLVED, that the Town Clerk is hereby authorized and directed to cause public notice of said hearing to be given as provided by law; and it is further

RESOLVED, that the Town Board of the Town of Forestburgh hereby refers the adoption of the proposed Local Law 2 of 2017 entitled “Kennels”, to the Sullivan County Division of Planning and Environmental Management for 30 day review pursuant to General Municipal Law 239-m; and it is further

RESOLVED, that the Town Clerk is hereby authorized and directed to cause public notice of said hearing to be given at least 10 days prior to and said hearing to the clerks of any neighboring municipalities (including, without limitation, the Towns of Bethel, Deer Park, Lumberland, Mamakating and Thompson, as well as Sullivan and Orange Counties), the clerk of any parkway authorities within the Town of Forestburgh and the executive director of any housing authorities within the Town of Forestburgh, pursuant to Town Law 264.

BY ORDER OF THE TOWN BOARD.

MOTION by Councilman Galligan, seconded by Councilman Budofsky to adopt said resolution. Vote: 5 ayes – 0 nays. Motion carried.

PROPOSED LOCAL LAW – PLANNED DEVELOPMENT DISTRICT LAW –

RESOLUTION # 6

RESOLUTION OF THE TOWN BOARD OF THE TOWN OF FORESTBURGH SETTING A TIME AND PLACE FOR A PUBLIC HIEARING WITH RESPECT TO THE PROPOSED LOCAL LAW # 3 OF 2017 ENTITLED “PLANNED DEVELOPMENT DISTRICT LAW OF 2017 OF THE TOWN OF FORESTBURGH”

WHEREAS, the Town Board of the Town of Forestburgh is considering the adoption of a new local law regarding review of Planned District Development applications within the Town of Forestburgh, and said action, if approved, would appear to constitute a Type I action under the New York State Environmental Quality Review Act (“SEQRA”); and

WHEREAS, the Town Board of the Town of Forestburgh has previously declared itself lead agency with respect to the proposed action and has received no objection to same after notifying involved and interested agencies; and

WHEREAS, the Town Board of the Town of Forestburgh wishes to set a time and place for a public hearing with respect to proposed Local Law # 3 of 20127 entitled “Planned Development District Law of 2017 of the Town of Forestburgh”, so that the public may be heard and so that the environmental impact of the proposed action can be considered; and

WHEREAS, the Town Board of the Town of Forestburgh has also determined that the proposed action is subject to review by the Sullivan County Division of Planning and Environmental Management for pursuant to General Municipal Law 239-m.

NOW, THEREFORE, it is hereby

RESOLVED, that the public hearing be held by the Town Board of the Town of Forestburgh with respect to the aforesaid proposed Local Law at 7:15 p.m., on March 2, 2017, at the Town of Forestburgh Town Hall, 332 King Rd., Forestburgh, New York; and it is further

RESOLVED, that the environmental; significance of said proposed Local Law will be reviewed by the Town Board of the Town of Forestburgh following said public hearing; and it is further

RESOLVED, that the Town Clerk is hereby authorized and directed to cause public notice of said hearing to be given as provided by law; and it is further

RESOLVED, that the Town Board of the Town of Forestburgh hereby refers the adoption of the proposed Local Law 2 of 2017 entitled “Planned Development District Law of 2017 of the Town of Forestburgh”, to the Sullivan County Division of Planning and Environmental Management for 30 day review pursuant to General Municipal Law 239-m; and it is further

RESOLVED, that the Town Clerk is hereby authorized and directed to cause public notice of said hearing to be given at least 10 days prior to and said hearing to the clerks of any neighboring municipalities (including, without limitation, the Towns of Bethel, Deer Park, Lumberland, Mamakating and Thompson, as well as Sullivan and Orange Counties), the clerk of any parkway authorities within the Town of Forestburgh and the executive director of any housing authorities within the Town of Forestburgh, pursuant to Town Law 264.

BY ORDER OF THE TOWN BOARD.

Councilman Galligan asked what about Lost Lake, will they go back to the planning board? Attorney Jose replied that the approvals have all been granted but phases two through seven will go before the planning board. Councilman Galligan replied that’s good, that’s the way it should be.

MOTION by Councilwoman Landis, seconded by Councilman Budofsky to adopt said resolution. Vote: 5 ayes – 0 nays. Motion carried.

NEW BUSINESS

MIKE PREIS INSURANCE – David Bodenstein of Mike Preis Insurance appeared before the board and presented them with the policies for 2017. He gave a brief explanation of the policies and explained the deductibles and the removal of the property at 198 Dill Road, since the town no longer owns it. He presented the board with the invoice for the insurance for 2017.

MOTION by Councilman Budofsky, seconded by Councilwoman Landis to accept the insurance renewal. Vote: 5 ayes – 0 nays.

MOTION by Supervisor Hogue, seconded by Councilman Budofsky to include the voucher for payment with the earlier vouchers. Vote: 5 ayes – 0 nays. Motion carried.

SNOW AND ICE CONTRACT – Supervisor Hogue stated that we never received our fall snow and ice contract payment. I called the county and we adopted the contract in 2015 and the contract expires in 2018. They now want us adopt a resolution every year for the snow and ice contract. So we need to do one for 2016 and one for 2017.

RESOLVED, that pursuant to Highway Law Section 135-a providing for snow and ice control on County Roads with the Town, the Supervisor be and he is directed to execute a contract with the County of Sullivan for the Town to undertake and perform snow and ice control on County roads located in the Town for the period beginning July 1, 2015 and ending June 30, 2018 and any extensions thereof duly authorized as provided in such contract at the rates therein provided or hereafter approved. This resolution shall cover the year 2016.

MOTION by Councilwoman Barnhart, seconded by Councilman Galligan to accept said resolution for the year 2016. Vote: 5 ayes – 0 nays. Motion carried.

RESOLVED, that pursuant to Highway Law Section 135-a providing for snow and ice control on County Roads with the Town, the Supervisor be and he is directed to execute a contract with the County of Sullivan for the Town to undertake and perform snow and ice control on County roads located in the Town for the period beginning July 1, 2015 and ending June 30, 2018 and any extensions thereof duly authorized as provided in such contract at the rates therein provided or hereafter approved. This resolution shall cover the year 2017.

MOTION by Councilman Budofsky, seconded by Councilwoman Landis to accept said resolution for the year 2017. Vote: 5 ayes – 0 nays. Motion carried.

MINUTES – Supervisor Hogue asked Clerk Nagoda if there is any way to expedite the completion of the minutes so they are received in a timelier manner. Clerk Nagoda stated not really, they are worked on in between tax collection and taking care of the phone and anyone who walks in the door. I have brought in my deputy and this past Monday alone we processed 1.1 million dollars. Yesterday I came in and made everyone whole, the town, both fire districts, the library, plus I sent the county a half of a million dollars, this is the earliest we have ever made everyone whole. We’ve also had a lot of extra meetings and my office is a service based office. Supervisor Hogue stated that there are laws that say the minutes have to be out in a certain amount of time. Clerk Nagoda replied she is well aware of that and is doing the best she can for one person with a temporary deputy. I don’t want to blow my budget and just today arrived the tax payments for three escrow companies, Hartwood and Merriewold. Tax collection is not just pick up a check and go to the bank. There is an entire process the payment has to be posted, owners must get receipts the permanent roll that get returned to the county must be marked and accurate.

COMMITTEE REPORTS –

Planning Board – We met and we have started to review the laws that were sent to us. We are also preparing to receive an application for a subdivision from Republic Lake Joseph. They are looking to subdivide their 430 acre parcel into two parcels, the divider between them being Lake Joseph Road. We will continue to process that application at the next meeting. Tent Days assures us that we are going to receive an application from them. We are continuing to review the proposed draft subdivision code. We have not addressed the proposed PDD law, but we will and have our report to you before the public hearing. Councilman Galligan suggested that when reviewing the proposed subdivision code, many towns have it in their legislation that a road is a boundary – if we had that you would have to have Republic Lake Joseph as an applicant. I know Town of Thompson has it and I think the planning board should look at that.

Recreation – Ski program is underway.

Historian – No report.

Seniors – Next meeting, Monday, February 13 at 1:00 p.m. in the town hall.

Forestburgh Day – Meeting on March 9th at 6:00 p.m. in the town hall.

Comprehensive Plan Review Committee – Next meeting on February 7 at 7:00 p.m. in the town hall.

Solar Committee – Meeting on Friday at 4:00 p.m. and again on Monday at 7:00 p.m. at the town hall.

Fire Company – For the year 2016 we responded to 129 calls, we estimate that 80 were medical calls. Our annual corned beef dinner is March 18, from 5 – 8:00 p.m. Our membership has increased we are up to 38. We would also like to be included in the town’s Sullivan Renaissance project – Supervisor Hogue replied you are already on the list.

PUBLIC COMMENT –

Anthony Cardoso – Do you happen to know if we will be getting those property tax rebate checks or not, I can’t find any good answers. Supervisor Hogue stated that he could be wrong, but he believes you have to stay under the tax cap for three years this year we did, last year we didn’t. We are doing the revaluation and when that is done we won’t have that equalization rate which should reduce our amount of school taxes. The reval is moving forward but it probably won’t take effect until 2019. We may make it on time for the 2018 school taxes but county/town probably won’t be until 2019. The assessor informed me that within the next three months residents should receive a mailing with the information on the data collection and this will be your opportunity to question it. Meetings with GAR Associates and residents should hopefully start around the fall.

Sheldon Pasternack – Last month we talked about the highway department budget, you said that Joe Ruggerio was going to spend $150,000 on one road and $46,000 on the remaining roads. Everybody was saying “what, why would you do that?” and what about the other 9/10’s of the town. Has anyone spoken to him about that? Supervisor Hogue replied no, I have not. That is his call as highway superintendent. Mr. Pasternack stated you should speak to him and get some feedback, since he is never here. How do you actually know he’s at the highway department? Councilwoman Barnhart stated his letter says he will be here in March. Mr. Pasternack asked with the proposed kennel law, is there a fee for a kennel? Attorney Jose replied she believed so, there is a permit required, and yes, there will be a fee that shall be set by the town board.

Clerk Nagoda stated we have many laws that state there is a fee but none was ever set and the building inspector will attest to that. Discussion was held on addressing the fees and that fact that the building fees were recently changed with the hiring of the new building inspector. Sheldon Pasternack stated he just paid, and he doesn’t have a problem with it, the generator fee of $75.00 but when you have a commercial establishment paying $100 or $200 I have problem for doing a much, much larger project. It’s extremely unfair to the residents/public. It’s all out of proportion.

EXECUTIVE SESSION – MOTION by Councilman Galligan, seconded by Councilwoman Barnhart to enter into executive session and invite Code Enforcement Officer Glenn Gabbard and Attorney Jose into said session to discuss potential litigation. Vote: 5 ayes – 0 nays. Motion carried.

MOTION by Councilman Budofsky, seconded by Councilwoman Barnhart to reconvene into regular session at 9:00 p.m. Vote: 5 ayes – 0 nays. Motion carried.

ADJOURNMENT – MOTION by Councilman Galligan to adjourn at 9:00 p.m.

Respectfully submitted,

Joanne K. Nagoda,

Town Clerk

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