*****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. Seee.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. Seee.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.