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November 7, 2019 Public Hearing ZBA Report on Proposed Zoning Changes

MINUTES SOURCE: TOWNOFBALLSTONNY.ORG

A Public Hearing was held by the Town Board of the Town of Ballston on Thursday evening, November 7, 2019 at 5:45 p.m. at the Town Hall located at 323 Charlton Road.

PRESENT:
Tim Szczepaniak Supervisor
John Antoski Councilman
Kelly Stewart Councilwoman
Chuck Curtiss Councilman
Carol Gumienny Clerk
Debra Kaelin Counsel
ABSENT:
Bill Goslin Councilman

The Supervisor opened the Public Hearing at 5:48 p.m. The purpose of the public hearing is to accept a report for the Zoning Board of Appeals (ZBA) on the proposed zoning changes and to hear any public comments.

The Clerk read the legal notice for the record.

NOTICE OF PUBLIC HEARING ON A PROPOSED LOCAL LAW OF THE TOWN OF BALLSTON, AS SET FORTH HEREIN

LEGAL NOTICE IS HEREBY GIVEN that pursuant to Section 20 of the Municipal Home Rule Law of the State of New York, and pursuant to a resolution of the Town Board of the Town of Ballston, adopted October 8, 2019, the said Town Board will hold a public hearing at the Town Hall, 323 Charlton Road, Ballston Spa, NY, on the 7th day of November 2019 at 5:45 p.m., to accept any report of the Zoning Board of Appeals pursuant to the Town of Ballston Code Section 138-96 and hear all interested parties and citizens regarding the adoption of proposed Local Law 2 of 2019 titled “Amending the Town Code Chapter 138 Zoning and Chapter 104 Subdivision of Land”. Said hearing may be adjourned from time to time as necessary. Further information of said proposed local law may be obtained at the Town Clerk’s Office, 323 Charlton Road, Ballston Spa, NY 12020 or at www.townofballstonny.org

Dated: October 8, 2019
BY ORDER OF THE TOWN BOARD TOWN OF BALLSTON
Carol Gumienny Town Clerk

The Supervisor stated that the Board received the comments from the ZBA today and the Board will need to review. Chris Koenig of C.T. Male reviewed the report and will discuss the report with the Board and then we will receive public comment.

Mr. Koenig stated “Since all Board members need to review, I will not go into detail on every single comment but will go through some of the items; some of which have been addressed in the FSGEIS that was accepted by the Town Board on August 13, 2019.

Pertaining to agriculture buffers, the ZBA believes that 150 feet should be in place around agriculture uses.
There is a provision about signs and how the sign size requirements in design standards don’t match the proposed zoning code.
There is a comment about the use of TDR and how TDR and PUDD might compete.
There are also some clerical errors that occur in the numbering of the sections and those will be fixed prior to the final document being considered for adoption. Any formatting and clerical errors will be fixed.
There is a comment about front setbacks in the Business Highway 1 District. There is a discrepancy between what’s said in the Code and what’s said on the table. The Code says there is a build-to line in that district but there should actually be a 60 ft. minimum front setback from the Business Highway 1. This is another item he considers a clerical error in the Code.
There were some comments about TND in terms of subdivisions and density.
There is also a comment about the tables. The ZBA prefers the by zone tables instead of one master table. We have created these and certainly can use these as they are more convenient than one master. This has been completed.
There are some comments on definitions, terminology: open space, green space, the contention was allowing stormwater management vegetative pervious stormwater management features to be included in those definitions.
There are comments on the arrangement of the tables for the zoning districts.
Additional comments on definitions - discrepancies between the actual definition section and how it’s defined elsewhere in the Code pertaining to agriculture.
Build to Line, building footprint: definition is not consistent with housing envelope. Education facility, recreation, roadside stand, farm stand
A ZBA Board member asked for a stream buffer since the intent is to protect water, should it also apply to lakes, ponds and rivers?
There is some confusion in Mixed Use Center North and South and where it states, “Route 50 and Route 67” and borders Route 67; I would refer to the map.
other discrepancies in the proposed Code in terms of language use. These are some of the high points.”

The Supervisor stated “They are pretty much general comments and really no showstoppers in moving the process forward is what I am hearing. I ask that the Board review the comments. We are going to discuss each comment at our November Town Board Meeting, on November 26. We will establish a meeting date of December 10, at 6 p.m. for a special Board Meeting to have a final vote on the zoning. We need to move forward with closure.”

To help with the process, Mr. Koenig handed out to the Board the same ZBA report, he stated “Each comment is numbered. Moving forward, the comments, to be addressed by the Board, can be put next to each number.

Councilwoman Stewart stated “For her own clarity, she wants to make sure we are all reading the right document correctly. It states the ZBA reviewed the red-lined version and their first comment has to do with buffers. The comment states “our current zoning code requires a minimum buffer of 150 feet.” I just looked at Section 138-10.3 of the Code and a specific buffer is not mentioned. The Town Board proposed at one point a 150-foot minimum buffer was suggested, and it was discussed, and due to various situations - to leave it up to the Planning Board to determine an exact buffer. It says in the proposed zoning rewrite there is a buffer. If the comment from the ZBA says “our current zoning code requires a minimum buffer of 150 feet: what was being read? Because unless I am wrong, our current code does not require 150 feet buffer. “

The Supervisor stated “A lot of the comments the ZBA provided had been previously discussed by the Town Board in detail and the consensus was determined. We will go through the comments, some quickly, because decisions were already made on them, unless a Board member comes back needing further discussion. A lot of these were repetitive items that have already been discussed.” Councilwoman Stewart stated “my concern is that we are reading the right document because if the comment from the ZBA, who reviewed the document, is stating that the Town has a 150-foot buffer requirement, and we don’t, which is my view of the Code, I want to make sure we know what we are reading. Maybe the ZBA can clarify what was meant by that.”

The Supervisor stated “We are not going to go back and forth with dialogue and will follow protocol for public hearings. We will hear public comment that may clarify that. Does the Board have any questions for Mr. Koenig before we let the public speak?” No one commented.

The Supervisor asked for a show of hands of speakers and stated ”Due to the small number we will give each person five minutes to speak. Councilman Antoski will be the timekeeper. I will go over the rules: no foul language, cursing or offensive remarks; please do not repeat already expressed comments; no back and forth between the public and the Board; we are here to listen to your comments during the public hearing.” 

PUBLIC COMMENTS
Dave Pierce of 110 Lake Road stated “ One, I hope this public hearing will not close tonight because of all the comments that are in the document that haven’t been given to the public for them to comment on during the public hearing; we can’t comment on something we have not seen. Two, I thought, (this has been a 3 year process), the discussion all along has been inclusive with all the members of the Planning Board and all members of the Zoning Board for their input into the document we have in place, and that as it goes forward to the final vote, that they are happy and ecstatic with the new document coming out because they’re the ones who have been limited, all the years I’ve been coming to those meetings and how to deal with the growth that the town is facing, how to deal with projects that are invasive on agriculture lands, on wetlands, on our nature beauty in our Town. If they don’t have the document the way they want it going into the future, their hands will be tied the next 10 years. It’s been 13 years since the last one. I certainly hope that the Zoning Board and the Planning Board are all on board and made all the comments they wanted to make to this document, they are the ones who have to work with it. I would like to see a final draft posted on the Town’s website so that the public can read what the real zoning is going to be because all comments on the website are being amended and changed and I don’t know how you have a public hearing without seeing the final document.”

Steve Merchant of 357 Charlton Road and a ZBA member stated “If you look at your sheets that were handed out, I attached the FLPP survey that was done, when we made that plan, 88% of the respondents strongly agree or agree that promoting and encouraging local agriculture and farm viability is necessary to the rural parts of the Town to maintain it. To Kelly, I was at the Town Board meeting the night when we were talking about the 150-foot buffers with a sliding scale, I thought that was a done deal and when we saw it had been removed, we said where did it go? I asked C.T. Male at one of our meetings; he said the Town Board removed it. It’s right in the minutes. I don’t know where it is, but it should be there. I am trying to be positive about it. It should be there. It’s to protect the homes as well as the farmland, it works both ways. The other thing in my comment is that a lot of the statements in the proposal were changed, and I don’t know why, they’re worded differently, for what reason we have no idea, there’s a ton of them. I feel there is a lot of work that needs to be done here yet, so I think we just need to stay with the process.”

Mike Lesniak, chairman of the ZBA stated “First of all I am going to agree with what Steve Merchant said. That 150’, Kelly, was in there, it was in the zoning book we had, I know it because I went through it. It was 150 feet minimum and it was at the discretion of the Planning Board to increase that if they saw fit. A couple of other things: Mr. Koenig referred to a lot of prudent things that he skipped over; I’ll admit there are other minor things as well but some of these minor things should never have been missed. One of them was the discrepancy between Business Highway District 1 and 2. That was the original – it was changed to Business District Highway 1 and Business Highway Rural Transition; however, they may sound minor but if you go into the Figures of 4 and 5 it is still referred to it as Business Highway District 1 and 2. That is an inconsistency, things like this should have been picked up very easily. I know Mr. Koenig mentioned he will go over the tables again. I will read the summary: Our current zoning is flawed. However, the proposed Zoning Code is as flawed or perhaps even more so. The above listed concerns consist of major and some minor areas. These are not items that can be simply tweaked after voting to adopt the new proposed Zoning Code; therefore, the ZBA does not recommend a vote to adopt this proposed new Zoning Code at this time. The ZBA recommends that the concerns, items, and inconsistencies identified herein be addressed and resolved prior to voting to adopt the new proposed zoning. With that I will sign off.”

Ben Zadronzny of 136 Charlton Road stated “We heard from thousands of people on Tuesday they don’t want what’s contained in the new zoning changes from what limited information that most of them don’t have. With a new Supervisor and Board member coming to the Board, in just weeks, I feel that it will be disrespectful and wrong to have a vote on this very important topic to begin with. I think you should wait until the new team comes in to place has a chance to evaluate what you have and to weigh in; they were talking to a lot of residents and those residents made them very, very aware of what their wishes are. I understand that PUDDs are still a part of this which is spot zoning and gives any Board the ability to implement spot zoning – break the rules, change what shouldn’t be. That has been going on far too long and we need to stop it and I would like you not to vote on this until the new team is in place. Thank you.”

Bill Shaw of Everson Way stated “I was going to say what the last two speakers said so I will just reinforce that without going into it again. I would also like to comment on there was something called the redlined issue and the blue line issue that was never made very clear to the public what was going on. There is word going around that the Town Board adopted some changes to the zoning over the course of this year and it never came up in front of the Zoning Board which is supposed to happen according to State regulations as far as we know. Also, it seems to me watching some cases come before the Zoning Board, a lot of the stuff comes from them should actually come from the Zoning Board. It seems like all they are doing here is shuffling stuff that’s minor, easy cases to people on the Zoning Board and the Planning Board’s taken over some of the functions of the Zoning Board. I don’t think that is right. Every time you guys do something vague in the zoning, the buffer will be determined by somebody, that makes the Zoning Board’s job harder because then you have more cases of people saying oh we didn’t know and all this other stuff or when stuff gets adopted that these issues of who’s jurisdiction is who and also make the guidelines more clear so that so many people don’t have to come to the Zoning Board and get surprised that that is already decided by the Planning Board”.

Peter Solberg of 166 Charlton Road stated “We missed an “s” in our existing zoning and that “s” was at the end of an abbreviation and it was interpreted by both our Town attorneys and also the developer’s attorneys that even though it was referenced in an appendix that clearly stated that 1417 Saratoga Road was supposed to be a PUDD and those on the Planning Board believed that it should be a PUDD and it won’t because it will continue on as a major subdivision and that is an “s” . One “s”, on an abbreviation in a grid, and to say that inconsistencies are not important, critical in this type of legislation, is inaccurate. Zoning is supposed to be a guide as to how to develop this Town and it should be clearly understood, it shouldn’t be confusing, and should not have any type of conflicts between grids or diagrams or different documents and every time there is it opens up liability to the Town. It’s frustrating to the developers and frustrating to the residents and so I would take all of those discrepancies as critical issues that when exposed in a Planning Board scenario open ourselves up to liability in that either party can do an Article 78. The only thing the Town can do is eat that issue. I believe that the Zoning Board has been removed from a lot of the critical aspects of adopting the new code and replaced with the Planning Board which is not a governing body. The Zoning Board is a governing body within Municipal Law and the Planning Board is not. I’ll stick to this and say that this is a flawed piece of legislation that should not go in and those that will be coming into office are committed to correcting it and having it align with what the residents have asked for in the public comment which has been somewhat diluted. Thank you.”

Ruth Osterlitz of 3 Magnolia Lane stated “Dr. Pierce stated everything I wanted to say in the beginning but after hearing Peter talk, I decided what I really wanted to say is there’s your showstopper, Supervisor. Your comment of no showstoppers really offended me because zoning is the most important document in our Town and you have a showstopper.

The Supervisor wanted to enter specific documents into the record. The first is a letter he sent to the chairman of the Zoning Board of Appeals. He read the following:

Dear Chairman, Lesniak,
I was somewhat surprised at your comment at the Town Board meeting on September 24, 2019. You, as well as your board, have had the opportunity to comment on our zoning changes since this process began back in 2016.


I would like the Zoning Board to note the following as part of your record:

1. The Town has had workshops on zoning and asked for input from all interested parties since this matter started in 2016.
2. On November 29, 2017, the Town Clerk, at my request, sent you, along with others, an email which attached proposed Zoning Changes as of November 2017 and asked that you take another look at the proposed zoning changes. She advised you that the Town would hold a public hearing approximately 8 weeks later on January 30, 2018. You did not respond. This was in accordance with our Town Code 138-96. It was expected you would distribute the same to your board members. The ZBA did not respond nor issue a report at that time
Please note that, in addition to you as Chairman of the ZBA, the Chairmen of the Planning Board and Farmland Protection received copies on the same date.
3. The Town Board scheduled a second public hearing on March 12, 2019. Again, the Town Clerk sent you the proposed changes to the Zoning Code to you as Chairman of the ZBA on February 14, 2019 and put hard copies in your box. The Notice indicated that it was also a Notice of Completion for the Zoning and Subdivision changes. We held the public hearing on March 12, 2019 and held it open for written comments until March 22, 2019. Again, the Town received no response from the ZBA. 55 residents and nonresidents spoke at the public hearing and 41 people submitted written comments. None were from you or the ZBA.
Since the public hearing in March 2019, we have discussed finalizing the zoning and subdivision changes. C.T. Male, as our Town Engineers, became involved to assist in the Final Supplemental Generic Environmental Impact Statement (FSGEIS). This, along with the Notice of Completion, the Resolution Accepting the FSGEIS and the actual FSGEIS, was sent to you on August 16, 2019 and has been posted continually on our Town web site for months as have been the proposed changes to the Zoning Code.
As indicated at the Town Board meeting on September 24th, the Board wants total transparency so we added a public hearing after your ZBA meeting so we could again try to have some input from the ZBA, albeit very late in the process. Our Town Code provides in Section 138-96 that “every such proposed amendment shall be referred to the Zoning Board of Appeals for report prior to public hearing thereon.” We have done our due diligence on three separate occasions and continue to wait for the ZBA to report.
These changes will be in the form of a local law under the Municipal Home Rule Law. Section 264 of the Town Law has been fulfilled. 
I ask that this letter be made and read into your record on October 2, 2019 so that it clarifies the efforts the Town Board has made to comply with our Town Code and involve our various boards.
It is the intent of the Town Board, after almost 4 years, to pass the zoning changes and subdivision updates, at that time it was supposed to be on October 8, 2019.
“This letter was signed by him and distributed to the Board, C.T Male, Town Clerk and Clerk for the Zoning Board of Appeals. “

The Supervisor also read three correspondences for the record from the Town Clerk. 
1. “February 14, 2019: “Chairman Van Vorst and Chairman Lesniak, I am required to send you this information pertaining to the zoning changes. I have put hard copies in your mailboxes as well. Any question, please let me know. Thank you.”
2. “November 17, 2017 “All, Tim is requesting that everyone take another close look at our proposed zoning changes. A public hearing has been scheduled for Tuesday, January 30th at 6 p.m.”
3. “August 16, 2019 “Zoning Board Chairman Lesniak, The Ballston Town Board has accepted the above referenced FSGEIS as complete. Attached please find the following files related to the acceptance of the FSGEIS. 1. Notice of completion 2. Passed Resolution accepting the FSGEIS, 3. FSGEIS. You are receiving this because you were identified as an interested party in the Draft and Final SGIS These files are provided for your review, but no further action is required on your part.”

The Supervisor asked the Board “Do you prefer, as suggested by the public, to keep the public hearing open?” The Board replied “yes”.

The chairman of the ZBA wanted to respond to what the Supervisor just stated.
Mike Lesniak stated “I am away all the time for most of January and February and did not acknowledge or receive those things that you mentioned. I was able to dig them out later but did not receive them at the time. In my mailbox, I never received those hard copies, I don’t know what happened because I come back in March, so if someone else picked them up, I didn’t know about that. Everything that you stated is January and February and that was when I was gone.
The August 16th correspondence is what we responded to this evening and it was sent out to the Board members shortly after and they started the review. Your statements aren’t completely true, and I will call you out on it. I wasn’t going to mention it, but you brought it up.” 

Steve Merchant stated “I mentioned in my statement that this went through four different hands. I was at the meeting when items were changed with the planner that he knew nothing about, then she was gone. Maps were changed. How do you expect us to keep up? It’s not easy. I have a huge pile of paper. The whole packet we received three different versions.”

Paul Simpson of Westside Drive stated” It sounds that the various agencies that needed to approve the format of the zoning change, it is very possible that they had different versions than what the final version will be. I didn’t have any confidence when the Supervisor talked the other night, one of the last meetings, with red line and blue line, no one at the meeting could identify what they were looking at. They all talked about different versions. It wouldn’t surprise me to find that Saratoga County Planning Board and Ag and Markets approved something entirely different that is being discussed. It will be interesting to find out what they actually approved”.

Respectfully submitted,
Carol A. Gumienny Town Clerk

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