Town of New Scotland
May 5, 2009
Present: Robert Stapf, Chairman, Charles Voss, Cynthia Elliott, Elizabeth Stewart, Kevin Kroencke,
Lorraine Tuzzolo, Robert Smith
Also Present: Louis Neri, Town Attorney, Paul Cantlin, Town Inspector, Keith Menia, Town
Public Hearing 7:00 P.M.:
Special Use Permit Application #513: Application submitted by Walter Gibson to be allowed to
construct a pond on a parcel owned by him and located at 290 Cass Hill Road. The parcel is situated
within the RF district and is identified as New Scotland tax parcel # 105.-1-5. The pond will be dug
into the ground to a maximum depth of 12 feet with little or no berm and will encompass an area of
approximately 2.17 acres. The intended use for the pond is to provide for private recreation and to be
used as a water source in the event of a fire. This application is a Special Use of Article II, Section
190-11 of the Town of New Scotland Zoning Law.
Mr. Rick Blysma represented Mr. Gibson. What we are doing is building a 2.17-acre pond about 12-
feet deep. We are putting an island in here. A small little bathhouse for changing and a sandy beach.
There is no real strange or watershed that it would be interfering with and basically it is strictly for
Walter Gibson’s family use. A little mini resort that he would like to build there for his family. We
will have a place where fire trucks can access here. This is probably about a quarter mile off Cass Hill
Road. Fire trucks can come in here and they load up their water trucks in case there is an emergency
fire up on Cass Hill. Do you have any questions?
Mr. Stapf: Well, you have spill way and you are going to be rip wrapping the spillway.
Mr. Blysma: Yes. The spillway here and we will put rip wrap in there. All the spoils that we take
out of the pond we are building a toboggan run on this side here.
Mr. Stapf: What about your SWM plan?
Mr. Blysma: I dropped off a letter to you today about SWM and it will be followed by NYS
regulations and we were filling about an NOI-Form and they will be improving it all. There is a plan
that I have drawn up along with the letter that I sent to you today. This is a partial plot plan. There
will be silt fences along the south side of approximately 200-feet of silt fence to allow no seepage of
any kind of water that we are dealing with in case of large storm. There is hardly any seepage right
now, but the silt fence is necessary to put in there. As soon as we can after we do the excavation we
will be putting season mulch in all around on top of the toboggan run, which will be over here. We
are putting the silt fence just in case there is a major storm.
Mr. Menia: How do you propose to keep suspended sentiment from going down through the outlet?
You are going to be working in the pond area. How are you going to prevent the murky water from
Mr. Blysma: We are looking at the weather reports. We are looking to do it in 14-days or less. I am
hoping to do it in much less time. Hopefully we will get no rains and we will have the pond all grind
out and we don’t expect anything to seep out of the area that we are working in. It would be a
sentiment area in the pond itself and we will have a small pump there that will pump anything into a
sentiment basin in case there is any major storms.
PB min. 5.07.09
Mr. Menia: This type of narrative is usually described in a Storm Water Pollution Prevention Plan.
Under the Towns current storm water regulations all that information is suppose to be supplied to the
town even prior to submitting a notice of intent with DEC. At the previous meeting we had asked you
to present a Storm Water Pollution Prevention Plan to us that would show us how you would ensure
no off site derogation was going to occur. We still need that. You cannot file a notice of intent with
DEC now without going through the SWM office and getting your SWPPP reviewed and endorsed, so
that was something we did ask you for.
Mr. Blysma: I thought the letter.
Mr. Menia: The letter does not constitute a Storm Water Pollution Prevention Plan.
Mr. Blysma: Okay, I’ve been dealing with NYS on this, but I will look into it on more detail. I will
find out what is necessary, but it will be all approved by NYS DEC before we go forward with any
kind of construction.
Mr. Menia: NYSDEC is not going to look at your plan. They don’t look at the plan itself. All they
look at is the NOI which is the application form. The actual prevention plan, the location of your silt
fence, the temporary basins, your diversion, however you are going to deal with diverting the water
while you are working on open area that gets reviewed and approved by the town.
Mr. Blysma: Okay, not a problem. There is no stream we are damming up, there is no real water that
fills it in. It is kind of like a spring fed, so it is very slow filled. It will probably take a year to fill this
pond. During the rainy times when I was up there looking at it to make sure we won’t have any
problems there wasn’t much run off. It runs off into a field, which is full of grass. It is just a damp
area. It is not a stream type of situation that is there now. I thought I had covered that. I did bring the
forms to right to DEC and they have seen them. I have gone over it with them in detail. I do have the
paperwork that needs to be filled out and they will approve that hopefully within five days. Is there
more of what the town is requiring? I will certainly take care of that.
Mr. Cantlin: Are we going to need some type of escrow account to have this looked at Keith?
Mr. Menia: I don’t believe we need to go that far, but we do need more information from you.
Mr. Cantlin: We need the plan. Correct. A narrative and also the drawings to show where it is going
Mr. Menia: For example, you need to document stabilizations such as I am going to plant open areas
within 14 calendar days this is the planting mix that I am going to put down to make sure I am going
to use hay and mulch. There is a whole bunch of information.
Mr. Blysma: They kind of said that just the mulch and grass seed is all we need as soon as we finish
excavation we’ll be mulching it and putting the seed down. I was under the impression that was
substantial. As long as post construction we do check it all the time to make sure there is no water
draining off that should not be draining off. I will dig into it deeper and I’ll put something more
Mr. Stapf: We need a report. More than just a short one page. It would show your intent. The laws
have changed and we now are responsible to the State. We need a report that goes down and touches
on all the items that you’ve told us what you are going to do, but it has to be in a formal document.
Mr. Cantlin can give you some guidance as to the format.
PB min. 5.07.09
Mr. Blysma: I did that with the State.
Mr. Stapf: The applicant did show us on the recreational structure that there were not going to be any
bathrooms or septic system. There will be a well.
Mr. Blysma: There will be a well. We will be running a water line to there just for hand wash part.
There will be no kitchen sink, there will be no big water use. There will be an outside shower.
Mr. Stapf: The intended use for this? Is primary for personal recreational services and also for fire
Mr. Blysma: Yes that is correct.
Ms. Elliott: Can you give us at least an assurance when you give more information that your pond will
not come close to that underground AT&T fire optic is. Give us a rough distance.
Mr. Blysma: I will designate where that is.
Mr. Stapf opened the meeting to the public. No public comments.
Mr. Stapf made a motion to close the public hearing and Ms. Stewart seconded the motion. All in
favor motion so carried.
Site Plan # 83: Application submitted by Blackbird Prime Property LLC for a site plan review of the
current uses of a parcel and the planning board conditions of their approval. The parcel, owned by
Blackbird Prime property LLC, is located within the commercial district at 1972 New Scotland Road
and is identified as New Scotland tax parcel id # 84.-2-26. This application is made pursuant to Article
V, Section 190-52 of the Zoning Law.
Ms. Moreau represented Blackbird Prime Property LLC. She explained to the Board that the property
owner is continuing with what he has been doing with this particular building, which I believe has
housed an office space and some retail space. Previously there were some flower sales that occurred
there and sales and service business in the office for this particular two-frame dwelling. I think the
concern of the Board was the ingress and egress to the property. I think you have in your packet a
letter from DOT, which states they have reviewed the work permit application. The current highway
cuts are sufficient. This office agrees with the preliminary proposal of the approved submittal of the
application to the regional permit office. These are modular homes that are for display. They have
been on the property. They will remain on the property. They were covered under a previous
application some years ago. We are looking at a driveway cut coming in. Virtually in the area of the
intersection of 85 and 85A, which exists now. Proposed parking and the driving continues around the
back. There will be no paving of the existing driveway.
Mr. Stapf: It has been pressured graveled so it looks nice. We did discuss the issue of paving of 25-
feet off of the pavement from the apron. For the applicant to pave that part. I think it is paved back
right now about 9-feet. The drainage has been corrected. We did have problems in the past.
Mr. Cantlin: I talked with Howard and he was trying to explain to me what Dave, from (DOT), the
Assistant Engineer over there, but I couldn’t totally understand, so I called Dave myself. Through the
conversation with Dave, this was on April 22, 2009, there had been an examination of the existing
road cut on the easterly side of the parcel and a proposal to combine the egress from this parcel with
the mobile home parcel egress abutting the west side of the parcel. His comments were the following:
the easterly road cut is a pre-existing and has been there for more than 50-years without a known
insistent occurring. Any change to this cut would require NYS review and ultimately would not be
PB min. 5.07.09
approved. This cut by current laws or rules is to close to the traffic intersection. The easterly cut is
currently paved 28+/- feet in width and 25+/- feet in length any decrease or alteration to the width or
location of this cut would also cause a NYSDOT review to occur and that would also result in the loss
of the road cut. Howard talked to you about putting in one-way signs to enter in. The NYSDOT
would not sanction any one-way signs to be located on state property for the road cut to the east. The
state would not want to incur any liability resulting from such an approval. However, the applicant
could erect a one-way sign on his own premises at that entrance. DOT favors the use of the current
egress from the mobile home park, which abuts the western boundary this parcel and the egress from
this side being combined into one they believe to be a good plan. NYSDOT would look favorably on
one-way signage on such a combined egress and would issue a permit for such signage. That could be
located on State property. The basic conclusion was to leave the easterly road cut alone and encourage
the applicant to use the current egress of the abutting parcel to the west as a combined egress to
support both parcels, if there are any change in width or location of the easterly road cut he would lose
Mr. Stapf: The blacktop is paved to the State right of way. It stops at the State right of way.
Anything that we would ask the applicant to do would be on his property not on state property. Again,
another area that is desired by the Board and the applicant to put an entrance, or one way sign up at
that entrance on the applicants property to discourage any traffic going out that way.
Ms. Elliott: I do not believe that the applicant wanted to mandate that, but utilize rather than parking
the way it is shown it forces you to park in an angle like that and it makes the traffic flow and come
out the egress of the trailer park. I’m not sure if he wanted to actually have signage once the State said
please don’t put any signage up in that area. He may be able to put up do not enter or something on
the building coming back the other way.
Mr. Cantlin: He can apply signage, but not on State property, just on his own property. The Albany
County PB follows the same line. They want the local approvals to include a review by the NYSDOT
for access, although the existing entrance for the site is from Route 85 it may not be located in the
safest or best location due to the proximity of the intersection. I think we have addressed that from
the comments that Dave had from DOT. PB should also encourage the applicant to combine the
driveway access on the western side of the parcel with the driveway of the mobile home park nor to
increase the road cuts. He suggested that too. The final advisory note that the town PB should
consider landscape plan as part of the site plan of this parcel. It is a gateway to the commercial district
and is situated in a prominent intersection.
Ms. Elliott: The applicant has put several plantings on the next parcel.
Mr. Stapf: Yeah, he has cleaned up along side of that fence there. He has cleaned up out front there
and dressed it up. I would look for some sort of signage on his property that this is not an exit or
something like that is visible from his property. To discourage people from going out that way.
Again, the area has already been graded and graveled. He brought some topsoil in to dress up around
the house there.
Ms. Elliott: We talked about painting an arrow, as long as we extend the apron onto this parcel and we
can put an arrow on there that gets away from the signage.
Mr. Stapf opened up the meeting to the public.
Ms. Kormos: I was just wondering in this vicinity they are talking about doing a round about at some
point in the future. Does that impact anything at all? Is that going to be in that area? That supposedly
is on the drawing board at some point.
PB min. 5.07.09
Mr. Stapf: I have not seen any drawings. I read some stuff in the paper about it, but I have not seen
any drawings or any indication from our engineering department about any work being done there, if
they do something there it most likely going to have to acquire some property and reconfigure the
Mr. Stapf made a motion to close the public hearing. Mr. Kroencke seconded the motion. All in favor
motion so carried.
Site Plan Application # 84: Application submitted by Stuart Morrison for a site plan review. The
parcel currently houses two structures and is used in a commercial capacity. One existing structure
serves as an insurance investigation office and the second structure is used for the temporary storage
of items that were under investigation. This application is for the review of an additional 24-foot by
442-foot addition to be attached to the front of the rear structure, and located between the two existing
buildings. The new structure would also be used for the temporary storage of items that were under
investigation and would contain an area to be used for the dismantling and examination of those items.
The site is owned by Mr. Morrison, contains .96 acres, is located within the Commercial Hamlet
district of New Salem at 705 New Salem Road and is identified as New Scotland tax parcel id#
82.-3-21. This application is made pursuant to Article V, Section 190-52 of the Zoning Law.
Mr. Morrison you’ve said it all. Basically we are looking another section in the back building that
would contain inspections. Inspections that are now housed in the front building. Limited water for
hand washing sink and a bathroom.
Mr. Stapf: You have public water. Any comments.
Mr. Voss: My only concern is lot coverage.
Ms. Elliott: I think it looks to be fine.
Mr. Stapf: Anything from Albany County?
Mr. Cantlin: Basically it is deferred to local consideration. They found the proposed action has no
significant county wide or municipal impact.
Mr. Stapf opened up the meeting to the public. No public comments. Mr. Stapf made a motion to
close the public hearing. Mr. Kroencke seconded the motion. All in favor motion so carried.
Discussion/Action Minutes for April 7, 2009: Ms Elliott made motion to correct page 7 in the
minutes. Corrections will be submitted. Ms. Elliott made a motion to approve the April 7, 2009
minutes and Mr. Voss seconded the motion. Mr. Stapf and Mr. Kroencke abstained from voting. All
others in favor.
Discussion/Action Special Use Permit # 513: Ms. Elliott made a motion to table Special Use Permit
#513 until they come back with more information. The public hearing is closed, but the decision we
can hold off for 62 days. Mr. Smith seconded the motion. All in favor motion so carried.
Discussion/Action Site Plan # 83: We want the applicant to pave back from the road of a minimum of
one car length or 20-feet. It is the entrance. We would also like a sign posted on the applicants
property indicating that this is not an exit. We would like the applicant paint a directional arrow on
the paved entrance way. We do have a short form environmental assessment.
PB min. 5.07.09
Mr. Stapf made a motion to issue a no significant environmental impact caused by this application. I
would like to make it a negative declaration. Mr. Voss seconded the motion. All in favor motion so
Mr. Stapf made a motion on Site Plan #83 that we approve site plan #83 as submitted by the applicant
conquering with the present usage of the property for both existing model homes and the structure and
the commercial use of the public structure that the entrance way at the intersection of Route 85 and
Route 85A be paved a minimum of 20-feet off of the state pavement. This is not an exit sign placed
on the applicants property. That an arrow be painted for the directional flow of the traffic on the
applicants paved portion of the pavement. Ms. Elliott seconded the motion. All in favor motion so
Discussion/Action Site Plan # 84:
Mr. Stapf: Again we have a short form environmental assessment form. The applicant is requesting to
do does not appear have any significant environmental impact that this addition would cause to the
property. Therefore I would recommend that we issue a negative declaration. Mr. Kroencke seconded
the motion. All in favor motion so carried.
On the application itself site plan #84.
Ms. Elliott made a motion to approve Site Plan #84 as presented. Ms. Tuzzolo seconded the motion.
All in favor motion so carried.
Henry Digeser : A review of Ag and Markets required conditions to allow for a windmill to be
erected on an agricultural site owned by Mrs. Nancy Digeser. The site is located at 130 Copelend Hill
Road and is identified as New Scotland tax parcel # 130.-1-19. The erection of a windmill on an
agricultural site within an agricultural district is allowed under the Ag and Markets Law provided
certain criterion is shown and addressed.
Mr. Stapf: The Ag Department has issued a letter to the town indicating that under certain
circumstances a farm can construct a windmill to meet their needs and that is what we have the
building permit for is for a windmill to be sited on property at 130 Copeland Hill Road.
Mr. Digeser explained that he is constructing and this is new in the town. Basically we are in addition
to putting this up on the property in New Scotland we have a unique piece of property that is pretty
well hidden from public view, so visually it will not be an attraction for people throughout the capital
district coming to look at it. The Town of Bethlehem has approved us to install a windmill in
Glenmont and we have it erected and running. We have neighbors all around and we have not heard
any complaints. Basically it is a small wind turbine that produces about 5 KW of, which is about the
same size as a small Honda generator running 24-hours a day. When it is very windy the ambient
noise of this particular wind turbine will match the noise in the area. Leaves rustling or not. When it
is not windy the wind turbine doesn’t move so that it doesn’t make any noise, so it would be silent.
The power generated will off set the cost of the power required to do the fence line protected for the
farm, water heaters, so that the water doesn’t freeze for the cattle, and so forth. There are certain
requirements that the Ag requires. It is not a mass production plant that we don’t produce more than
we can consume. By our calculations we are going to be consuming about 20% of the power
produced. I don’t know if you have any particular questions? The higher the windmill is up in the air
the better it is, so that is why we have it like 300-foot up in the air. This one I am proposing about
110-feet up in the air. It is mainly because of the frictional forces of the wind against the trees and
anything in the area creates turbulence and doesn’t make the windmill top rate efficient, so that is why
the height is required at that certain height. You can have it lower, but it won’t produce as much. The
PB min. 5.07.09
windmill will not produce any kind of power unless Niagara Mohawk’s power is on line, so there is a
break on it all the time if there is no incoming power. As soon as there is incoming power the break
turns on and that’s like an added safety factor in case somebody is working on a power line and this
thing is turning you don’t want power going back into the line. If there is a power outage I’m not
going to be up there drinking cappuccinos while you guys are in trouble. When there is a power
outage I do not have any power. This windmill will not operate.
Ms. Stewart: What about storage cells?
Mr. Digeser: There are no storage cells. There is potential with this, but this is an on grid system.
This is to basically offset your power costs.
Ms. Elliott: Your application on page 2 it is telling us a 130-foot high windmill and you are telling me
110. Not that I care, but what I want to know is what is the break point you are telling me the 110 in
which you have to be in order to make it basically functional.
Mr. Digeser: The Department of Energy has some guidelines and they recommend that its 40-feet
above any kind of interference line. I have 50-foot trees roughly in the area, so it is 90-feet then I have
an 18-foot blade. I think I’ll get an average of 4.5 KW’s per hour. Realistically.
Mr. Stapf: Ag and Markets indicated that one of the criteria’s would be that it is located within an ag
district, which this is. The applicant does not generate more than a 110% of the need, the applicant
has indicated and has submitted documentation on what his needs are. He will not be exceeding those
issues. They indicate that the height is only limited by the necessity of the turbine to generate
efficiently again the applicant, the canopies around the town normally run about 80-feet. You said you
had some 50-foot trees?
Mr. Digeser: Yes.
Mr. Stapf: But normally a canopy in our town run about 80-feet. When you add the additional space
to be above the canopy and your wind blades again his request is not exceeding those issues. Setback
is 150% of the tower from any property line. Again, the location that the applicant is proposing to put
this is well within his property lines. Most likely will not be seen by any neighbors. The tower must
be protected from climbing. Again, it is a pole. It is not lattice work. This is a type two action under
SEQRA, so there is no review that is required under SEQRA. I think the applicant has demonstrated
to the PB that what he is doing falls well within the Ag and Markets rulings. The applicant has also
given us information on the foundation and guidelines supports manufacturing specs on this structure
and the other thing I would like to note is that although there will be talk later on about a
recommendation on the town having a moratorium on wind power this is exempt from that
moratorium. So therefore it will have no affect on this application.
Mr. Digeser: It should be able to go up in one day. We have a shop in Glenmont. Stop by and see it.
Mr. Stapf made a motion to concur with the building inspector that this falls within his jurisdictional
authority to issue a building permit in conjunction with the Ag and Markets law. Ms. Stewart
seconded the motion. All in favor motion so carried.
Subdivision Application # 464: Application submitted by Francis Bossolini on behalf of
William and Kathryn O’Rourke for a two lot, minor subdivision. The parcel is owned by Mr. And
Mrs. O’Rourke, consists of 62.07+/- acres, is located within the Commercial District at 2007 New
Scotland Road and is identified as New Scotland Tax parcel id # 73.-4-17.2. The proposed new parcel
sizes will be a vacant parcel of 54.42+/- acres and a parcel of 7.65+/- acres containing a single-family
dwelling. This application is made pursuant to Chapter 164, Article II, of the subdivision law.
PB min. 5.07.09
Ms. O’Rourke explained that when they first started building the house we went to separate the house
from the rest of the land at that time, but the way the law was written it was very expensive so we
never went through with it. Basically what we want to do, this is the whole parcel with 62-acres, this
is where our house is. We want to subdivide out this lot to go with out house to make it separate from
Mr. Stapf: You only have the one primary entrance into the property right?
Ms. O’Rourke: Yes.
Mr. Stapf: Do you have a DOT work permit for that?
Ms. O’Rourke: Yes.
Mr. Stapf: Could you supply that to the town?
Ms. O’Rourke: Sure.
Mr. Stapf: Any Board members have any issues? Again, the reason it is here is because it falls under
the commercial district.
Mr. Cantlin: She submitted the agricultural data statement, and the master development plan was
submitted with the application.
Mr. Stapf: That was sent out to the County?
Mr. Cantlin: This was sent to the County on April 23, 2009.
Mr. Menia: We do have a minor comment or a request is that the location where your house is was
included in the Heldervale Water extension it is number 6, that was done to provide water to your
property, because it was more than a 150-feet back from the road. What we would like to see is the
water district boundary shown on the map.
Ms. O’Rourke: Okay. There is something fishy about that because I’m not sure that it is part of
Heldervale actually. It is just part of the permissive referendum water zone or whatever along…
Mr. Menia: Right there is a permissive water service area that is the first 150-feet from Route 85. The
portion where your house is was by Town Board action made into Heldervale Water District extension
Ms. O’Rourke: That would be a New Scotland water district?
Mr. Menia: That is correct.
Ms. O’Rourke: My water bill comes from the Town of Bethlehem.
Mr. Menia: Correct. We are currently working to resolve that right now, because there is no way to
meter your house off of the Heldervale Water District the meter is supplied through Bethlehem right
now. The district is actually drawn and it is a legal extension to the town.
Ms. O’Rourke: I didn’t know there was any problems with this district. We have been through this
before and I thought that it was all worked out. This is the first that I’ve heard of it.
PB min. 5.07.09
Mr. Stapf: There is not a problem.
Mr. Menia: No, definitely not.
Mr. Stapf: We just want it shown and noted on the map, so that it is clear on the map.
Ms. O’Rourke: Okay. I don’t have a problem with that. I just wanted to explain that originally when
we started that was the idea that it was going to be a part of the Heldervale system. I’m not sure it
ever went through that way, because when DEC gave had to grant Bethlehem the permission to be our
source they told Bethlehem that it was easier rather than make us a part of the Heldervale District to
just exchange the old house that we tore down and make this an existing part of the and that is why we
are getting billed by Bethlehem. So maybe you and I need to talk and figure out exactly what
happened. I don’t think we are part of the Heldervale District.
Mr. Menia: Sure. We can check that out.
Ms. O’Rourke: We just did whatever DEC told us to do.
Mr. Stapf: It is not a difficult thing, we just need to talk to our engineer and talk to Bethlehem. Make
sure what it is so it is clarified on the map. Put a note on the map showing what it is. I am asking you
for the highway work permit is that normally when you get a highway work permit from DOT they
require you to have a drainage go away from the State highway. That is normally the way the State
Highway work permit works. That they show the drainage goes away from the State Highway and
you put a culvert under the road it needed to do so and I don’t believe that the way it is right now,
because I know in the winter time the water comes off your driveway onto the State Highway, but if
DOT approved it that way then that’s fine. We just need to see that work permit then that meets the
criteria of the State.
Ms. O’Rourke: Okay.
Mr. Stapf: If you could get a copy of that permit over to Mr. Cantlin’s office when you get a chance,
so we can put it in our files.
Ms. O’Rourke: Just out of curiosity though is there something I can do to fix the water coming off the
driveway without ripping the driveway out?
Ms. Elliott: I think the answer was yes and then no.
Ms. O’Rourke: Okay, I’ll bring in the permit.
Mr. Stapf: If DOT approved it the way it is then…maybe if you do a little grading on each side of
your driveway. I’m not an engineer.
Ms. O’Rourke: There was also a water main break right there.
Mr. Stapf: If you show us the DOT work permit that should answer that question. Is there anything
else? That culvert that goes underneath the road that is by Howard is that shown on your map?
Ms. Elliott: No. It’s adjacent to the thing where it says wet area.
Mr. Stapf: Just have your surveyor just locate the culvert there. And show that the drainage goes off
your property. The Board have any other issues?
PB min. 5.07.09
Mr. Stapf made a motion to schedule a public hearing for June 2, 2009 associated with this
application. Ms. Elliott seconded the motion. All in favor motion so carried.
Referral -Amended Use Variance Request # 419: Mr. Robert Mitchell owns a parcel located within
the RF district at 29 Thacher Park Road. The parcel, identified as town tax parcel # 82.-1-52.1,
currently houses a single family dwelling and an accessory barn structure. Mr. Mitchell is requesting a
use variance to Article II, Section 190-11 of the Zoning Law to be allowed to renovate the accessory
barn structure into an architectural office for business purposes, a use not allowed within the RF
Mr. Mitchell presented a slide show presentation to the Board. We were told we don’t qualify
for a area variance so we are applying for a use variance. From day one the office was in the
home. This is how it has turned out. From day one the office was in it and here are some
pictures from ’82. The house itself received a lot of recognition. It won a lot of awards. This
is the kind of work that we produce from within the house. At the time we came the
ordinance allowed what they said other low density uses desirable for rural areas. We didn’t
pay much attention to it. This is the barn that we are interested in renovating. This portion of
the barn back here which is the newer wing, which is two-story and has 1300 square feet in it.
It needs some additional work in the barn. Here is what we are proposing. This is the barn on
the property. This is Tummels property and he has agreed that we can have a right of way.
This is the old farm road coming in. It has been there forever. It’s been washed out. The
culvert under 157 is too small. Tummel has stopped fixing it. What I would be doing is
fixing it so it can withstand the overflow strength. You come in here on the first floor as a
reception/office if you come up two risers and there is a whole printing area and if you come
up the remaining 10 or 12 risers to the upper portion, which is a conference room and three
work stations. It would be myself and four employees, instead of the two employees that I
currently have. The conference room that I have is a Smart Board, if you are familiar with it,
it allows us to work concurrently with architects anywhere in the world. As I indicated
projects in Fairbanks and Texas this is the future. Driving in your car is not. Flying in a
plane is not. This is where we need to be going. We have done 9 projects in the last two years
with a firm in New England. This happens to be there conference room. This is how it would
be treated. If we can find more barn siding, we just don’t know. This is hemlock that is on
there now. I think we are not going to be able to blend in stuff convincingly, so I thought we
would go with the vertical board and back rather than try to mimic it. The property owners in
the vicinity all of them except two Formavetis and Zem have given us letters of support.
These two haven’t given them only they didn’t replay. Perhaps only because they are not
around. I think what I am doing is what is evolving as the business module of the future. The
blue chip companies are going under. People are being dumped out on the street and finding
there own way. Creating businesses and the small business model that I’m trying to do I
believe is a significant part of the future of New Scotland. People who are attracted here
many of them are professionals that can have some new version of the home occupation. The
home based business is what I call a home property based business, which is not at all unlike
the history of the community. I mean the people who lived here a 100-years ago didn’t go
into Albany to go to work. They worked where they lived. That was the presentation. We are
looking for permission to have an office in the barn. We don’t work at night. We don’t make
any noise. I guess that is what I wanted to say.
Mr. Stapf: Are you going to have a toilet facility in the barn?
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Mr. Mitchell: We will and I’ve talked with Bill Ryan and I haven’t had him come back for a
perk test yet, because I wanted to see where I stood with everybody here. The State DEC says
15-gallons a day per person. There are 5 people so that is 75-gallons a day. Depending on
how the perk test go we may go with a composting toilet and then a gray water system for the
sinks, but I think we’ll be able to ask the clerk for the 75-gallons a day. A four bedroom
house is some 500-gallons a day. This is 75 a day for five days and in truth the 75 is higher
than what people really use, if you consider two toilet flushing at a gallon and a half and
washing your hands twice is a gallon. The coffee you make you drink so you don’t have to
count it twice. It is probably really half of that, but even to comply with DEC 75-gallons a
day is a small bubble.
Mr. Stapf: Where are you looking at putting your septic facilities?
Mr. Mitchell: It’s function on how it perks. I’m just guessing that I have to put it on the up
slope side and that I’ll have to have a pump to get up there. It could be in that field area. I’m
really thinking it is up here. The well is over here. It is formerly an outhouse.
Mr. Stapf: The reason that I was asking because I remember when somebody was trying to
put a pond in up the road here you had objected to the pond, because of the flow that was
coming down and obviously the run off was coming down the hill and affecting your
Mr. Mitchell: I was expressing a concern there if the pond would have failed what would
have happened to my property, because the water that comes down that dry creek is contained
within the creek. Other than where it hits the culvert on Route 157.
Mr. Stapf: Paul under the home occupation right now he has home occupation in the house
itself. The home occupation does not allow you to go to an accessory structure on a site?
Mr. Neri: By definition.
Mr. Stapf: The way the law is written it doesn’t allow for home occupation to happen in an
Mr. Neri: Plus it is limited to 500 square feet or 25% of the area, so 1300 feet would be
outside the residence.
Mr. Stapf: So he is caught on both cases that he exceeding the area plus he is exceeding the
Ms. Elliott: Paul our zone there is residential forestry is a 3-acre zone presently?
Mr. Neri: You still need a use variance.
Mr. Stapf: What you are proposing here is practical and reasonable in nature. The issue we
have is the law. The way the law is written presently there is no way that we can configure
that you can comply with the law itself. You are asking for a use variance associated with this
and there are certain criteria that the ZBA has to look at in conjunction with the use variance
and one of them is the financial hardship issue. You have to demonstrate that you can’t do
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anything else with the property. You have to show us reasonable return on your investment
and so on.
Mr. Mitchell: I am working on those issues with the zoning board. I have what I hope they
will judge is a compelling argument.
Mr. Stapf: How it is going to affect the character of the community I mean the neighborhood
I mean you are keeping it, the exterior is still going to be like a barn, it is not going to affect
the neighborhood. Then you come back to the hardship issues, which is self created.
Ms. Elliott: I have a couple questions on practicality. On the map it shows an easement
which would be granted by Tummel. You certainly need to be able to for the ZBA to be able
to see that as a proposed easement. Lets show it as the devils advocate that Tummel says no,
okay, then you are going to have the driveway that you presently have the old roadway and
you have to basically get from here to there, which means parking not in the spot you are
showing us, because I’m not really seeing you cross that ditch.
Mr. Mitchell: I’ve figured that on how to do it.
Ms. Elliott: I can see where you have adequate parking to the north of the barn and to the east
of the small barn where you could fit it there until you so desire to come over the stream, but
it would be nice that we need to see that.
Mr. Mitchell: Sam I spoke with him yet again today he is strongly in favor of the whole
thing. I guess he use to sit on this Board.
Mr. Stapf: So Mr. Tummel has no objection to granting you an easement for that purpose.
Mr. Voss: My only concern is about the use. You have one employee now or two employees
Mr. Mitchell: I have two employees now. An architect and a secretary.
Mr. Voss: Obviously they drive onto the property so there really isn’t no noticeable
difference whether their vehicles are on the property or not you can’t see it from the road.
Mr. Mitchell: That’s right.
Mr. Voss: You are expecting two more?
Mr. Mitchell: Two more and we do not have clients that come to the office. I would say
since 2005 I’ve had three client visits. We go there. They are volunteer firefighters by and
large and what happens is that I go to their meeting, which is in the evening at their fire
Mr. Voss: In terms of coming and goings, deliveries, nothing?
Mr. Mitchell: UPS. The box of paper from staples. That kind of thing.
PB min. 5.07.09
Mr. Neri: Mr. Mitchell when did you buy the house?
Mr. Mitchell: In 1981.
Mr. Neri: Then you applied for home occupation?
Mr. Mitchell: Yes, that is what I recalled doing, even though there is no record of that.
Mr. Neri: Do you recall what year that was?
Mr. Mitchell: I think in 1982 or something like that. Ann Richards was on the planning
board at that time.
Mr. Neri: It was after you moved in.
Mr. Mitchell: When I moved it I didn’t realize I needed to do anything other than go to my
drawing board and work.
Mr. Neri: Well, that’s the self-created hardship that you are going to have to deal with. When
you bought it you knew it was an RF and that there was not a business allowed in there. That
is not something that happened after you moved in. The zoning didn’t change. That is one of
Mr. Mitchell: I would like to lean heavily on the phrase in the zoning from the time that other
low density uses desirable for rural areas. Now if you drive around town and I have pictures
of many, many of these types of uses that existed. Many of the farmers actually have offices
in their barns. There is a construction company with a facility on Bullock Road and a body
shop on Bullock Road. There is someone selling cars with a car dealership sign on Rock Hill
Road. There are lots that happen in this town. It is the nature of living here.
Mr. Stapf: Some of them are pre-existing uses prior to zoning. I know the one you are
talking about and some of them were granted, if you can find some specific examples to
present them to the ZBA to show them as models of things that have been done similar to
Ms. Elliott: Also in the RF zone. Where it has been granted. That you can use as a model for
why your justification should be granted too.
Mr. Neri: It may be helpful if you could produce that law for the ZBA, because I’m sure they
do not have it. The one you are referring to the 1981 zoning code.
Mr. Mitchell: It is here in the building.
Mr. Neri: You have a copy as well.
Mr. Mitchell: Yes.
Mr. Neri: That would go a ways towards helping your argument with the ZBA.
PB min. 5.07.09
Mr. Voss: I think these are the kind of uses we have been talking about for several years now.
To expand your home occupation you really don’t have impact on the character of the
community, but yet you have what could be a considered a nationally based firm, but there is
no tangible impact or visible impact out there. I’m thinking with the technology the way it is
you don’t have people coming and going per se to your site. Although I think you are going
to have a tough sell to the ZBA, because as Lou mentioned there are those criteria that you
have to meet. In terms of the use I don’t per se any tangible impact. I would certainly
recommend to send on to the ZBA with a favorable recommendation.
Ms. Stewart: Unfortunately I know other people that have applied for small businesses out of
their homes and because the law says they are denied. There is no impact on the community.
Mr. Neri: You can’t use the Use Variance as a mechanism to do that, because you are going
to have a slippery slope where everybody that wants to expand their business and move into
their garage, if you want to address it in a code by expanding what your definition of a home
occupation is and have a criteria and that you could use to evaluate the impact that’s fine, but
to try to get that kind of approach to the modernization of business through the zoning code
through a use variance it is a hard way of doing it. You’d have to really rethink how you are
putting your codes together.
Mr. Stapf: I think what the applicant is requesting is something that is reasonable in nature
and we have some issues with an old barn. We are sympathetic to those issues. You are
creating jobs in the community and so on, but on the other hand the problem that the ZBA has
is that they have to put blinders on and they have to read the law. What the law says and then
they have to read the criteria that they can issue an use variance under. I think that is going to
be a hard task for them to come up with this, unless the applicant can show within that zone
that there are similar uses that have been granted in the past. That zone is a large zone.
Mr. Mitchell: Here is what I would like to propose. I’ve had plenty of time to ponder the
difficult box or corner I’m in. If the PB would speak to the issue that they think it is a good
idea not withstanding the problem with the current zoning limitations. I hope that I had
created an argument with the ZBA that would allow them to pass in my favor. What I would
like to do is help draft some wording that could be incorporated in the ordinance that says this
is really where the economy is going. Everything you read says this is the future. For this
form of a home property base and small business that could be limited by type to things that
you would agree on that are non-obtrusive. I don’t mean body shops and things like that.
Limited in size.
Mr. Stapf: That may be a practical solution to the problem, but that is a solution that would
have to be addressed to the TB. That is an action that the TB and that has been done in the
past in other circumstances where something did not fit and the law was changed specifically
to allow something.
Mr. Voss: As Lou pointed out that kind of difficulty with the code the way it stands right now
is that you know we as a Board we’ve seen several of these over the years that we all say to
ourselves you know this is fine. We don’t have an issue with this. This is a good use of that
home occupation but the ordinance hasn’t kept up with the times.
PB min. 5.07.09
Mr. Mitchell: If the Board would speak on behalf of it that it seems like a good idea then my
next step with the ZBA would be easier than not.
Ms. Elliott: I think to a certain degree that may be pushing the Board in a spot that they may
not want to go given the other constraints on the property, which is if you got through that
first hurdle and then we’ve got the driveway hurdle and an access to 157. Then we have the
septic hurdle to me I look at the land I’ve know I’ve been criticized to do that, but it doesn’t
change and I’d love to be able to say yes we can do this, because I did a perk hole here and
yes I can get it to perk. That is an issue for me that we jump through these hoops and it may
not function anyway. I just don’t know that it will.
Mr. Voss: Paul is that something you can do can we issue, if we ask on a referral situation can
we ask potential applicant in front of us for additional information or can we condition a
referral to the ZBA that they seek that information.
Mr. Neri: If it gets granted it has to come back to you for site plan anyways. The issue before
you is just the use variance.
Mr. Stapf: We have several concerns I mean number one I mean we have a concern with the
proper documentation for the right of way. We have concern with adequate water supply to
the facility. Again, I don’t know what the water supply is there now. Is it sufficient enough
Mr. Mitchell: Yes it is sufficient.
Mr. Stapf: It may or may not be. I don’t know. I don’t know the issue of septic on the site
can be done. These are all issues that the ZBA needs to take a look at, but it also has to take a
look at the issue of the hardship issue and that is a very difficult thing for them to make a
determination on. You are going to have to supply them with significant amount of
information. Again, a practical solution as to was it enough circumstances that I am aware of
would actually go to the TB and to come up with something that the TB would deem
appropriate to change the law. The TB has the authority to do that if they chose to do so. That
has a double edge sword though because what is good for you in your circumstance is not
good a half mile down the road. You have to be very careful on what changes there. I would
forward this on to the ZBA that we have concerns. We have concerns over water supply. We
have concerns over sanitary, we have concerns over access to the site, we have concerns on
SWM on the site and close off the site. Again, I would put a strong emphasis on that maybe
the solution to this is that the applicant addresses the issues to the TB to see if there is a
solution with the TB could come up with.
Ms. Davies: A concern that I had when I visited this site was the actual location of the
proposed driveway and where it came out on the curve of the road and if that is going to
Mr. Stapf: Oh, definitely.
Ms. Davies: Now is the time to start the process with the highway permit and so on. I’m not
PB min. 5.07.09
Mr. Stapf: Even if we granted and we have granted things in the past subject to highway
permits and we have recommended the one way and the DOT has come back and said we
want you to do it this way. Well, DOT is the final rule on those types of circumstances.
Mr. Mitchell: That is a per-existing driveway. It has been there since before Thacher Park
Mr. Stapf: We all sympathize with the applicant. We like the barn. I like that you are
preserving the barn.
Mr. Mitchell: I will not be able to afford to fix the barn if I can’t do this.
Mr. Stapf: That is another issue that you need to bring up to the ZBA. The problem is again
they have to put blinders on. You have a practical use for the facility nobody is denying that
you don’t have a practical use for the facility, but it doesn’t fit the mold that the town has
already created. The solution would be for the Town to change the mold. Go to the TB and
that sounds like the most logical thing to do.
Mr. Cantlin: I am going to try to comment on Chuck’s question. You know this any, but the
ZBA has one set of things that they look at that is set up by the State. They have no choice
but to base their decision by what the State has set out for them, the five criteria. The PB on
the other hand does what the people are doing right now you are looking at the site. You are
looking at the access to it. The availability of water, how the land lays, where you are going
to park. These are the things you are looking at, so it definitely could be something that you
would address as a positive, but it may be something that the ZBA couldn’t possibly address
as a positive. To add one more slap on the butt, Albany County PB turned it down.
Disapprove without prejudice. The applicant does not meet the criteria for unnecessary
hardship. In this case the integrity of the residential forestry zone should not be compromised
due the precedent setting nature of allowing a home occupation to grow beyond the definition.
Approval of this application would impact all zoning districts in the town. So that means
instead of having three positives from the ZBA you are going to need four votes, a super
majority. That is one more step you have to step over.
Mr. Voss: I think we ought to rate the uses. The way the code is it has us transcribe it. I
think it would be great use.
Mr. Mitchell: I’d like to know if there is an opinion from the PB about one aspect of the
current code that says because uses allowed by permit private, non-profit, and/or public. It
doesn’t say what it is. I know it was meant to say recreational, but I am we are sort of being
helped, because here it says private or non-for-profit out door recreation uses, but it was a
typo and it would appear that if I have a non-for-profit corporation the way this is worded I
could do anything. Is that not so?
Mr. Neri: I would think that is not going to get you very far.
Mr. Stapf: It is not what the PB interprets it at it is what the Building Inspector interprets it at
and then if you don’t agree with the building inspector, the interpretation you can bring it to
the ZBA. The ZBA would make a final determination. Then if you don’t like their
PB min. 5.07.09
determination then you can take it to court under Article 78. We have done that before. If
you can convince the building inspector that is the way to go. We all that is a typo.
Ms. Elliott: On that administrative appeal it’s states it shall only be granted the appeal of the
ZBA if in fact the administrator, the building inspector has errorred. It has nothing to do with
whether they like your plan, don’t like your plan. You have to show that it is wrong. The
burden of proof is on you.
Mr. Cantlin: The problem is Bob is that your designs your features they are just so good, and
you’ve out grown your shoes. It’s success. It is tough, this situation you are under.
Mr. Stapf: The only solution I can see is a similar solution that you had with Freihofer. Work
with the TB. Talk to Mr. LaGrange and see what you can work out. As far as a
recommendation out of this Board I think this Board has to forward it back to the ZBA,
although we sympathize with the applicant we cannot see anyway that it could meet the
criteria that the ZBA needs to review it.
Mr. Mitchell: The ZBA has on a number of occasions allowed two dwellings on an un-
subdivided parcel. I can give you the references.
Ms. Elliott: If in fact they could be subdivided and meet code.
Mr. Stapf: A better option might be to acquire some land from one of your adjacent owners,
so that you can create two conforming lots. Then you would be back to us for an area
Mr. Neri: You can’t get an area variance on a definition. Home occupation is a home
occupation. How do you get a variance on a definition?
Mr. Stapf: If he made it into a dwelling.
Mr. Neri: The home occupation is limited to 500-square feet. By the definition there are
other qualifiers in the definition of what a home occupation is, and the size is those in
common with those definition. I know you are being creative, but I don’t think you want to
go down some dead end. Any activity customarily conducted entirely within the dwelling
with is incidental and secondary to the use of the dwelling, so it has to be incidental and
secondary. It can’t be the main reason or the majority of the reason.
Mr. Stapf made a motion that we are sympathetic with the applicant, the proposal is a
reasonable use of the property, however this PB does not see that the applicant has shown
sufficient documentation to allow the PB to make a favorable response on the use variance.
Ms. Elliott seconded the motion.
On the question?
Mr. Mitchell: Because you are phrasing this from the point of view of telling them something
about what you think they can do with regard to the variance process aren’t you prejudicing
PB min. 5.07.09
their ability rather than just talking about the issues of the site plan and things like that. That
could be the limitation of the PB purview maybe I don’t know.
Mr. Neri: No that’s not the limitations of the PB purview for a reference of a use variance.
They are constrained to make a recommendation as to the use variance. The site plan
approval that they’ve talked to you about is a whole totally separate application that if you
were granted the variance and then they would be dealing with you on those regards. They
are more attuned to those things, because that is what they do. What is required of them in the
law is to pass on their opinion on the use variance that aspect of it. At this juncture. They are
not prejudicing they are just doing what they are suppose to be doing.
Mr. Stapf: I did indicate that we are sympathetic to your application. Anything else on the
All in favor: Ms. Elliott, Ms. Stewart, Mr. Stapf, Ms. Tuzzolo, Mr. Smith
All opposed: Mr. Voss and Mr. Kroencke
Motion so carried.
Referral - Variance Application # 420: Application submitted by Walter Tambasco, Jr. for relief
from Article III, Section 190-30 (F)(2) of the Zoning Law and relief from Article 16, Section 280-a of
NYS Town Law to allow for a building permit to be issued for a structure to be erected on a lot owned
by Walter Tambasco, Jr. The lot is a pre-existing/non-conforming land locked parcel that is accessed
by a deeded 20 foot rights-of-way over lands of another parcel that has road frontage Wolf Hill Road.
The parcel contains 5+/- acres, is located within the "RF" district, and is identified as New Scotland
tax parcel id# 93.-1-18.2.
Mr. Stapf made a motion to refer onto the ZBA with a favorable response. Ms. Elliott seconded the
motion. All in favor motion so carried.
Referral Variance Application # 421: Application submitted by Robert Vandenburgh for relief from
Article XIII, Section 190-99 of the Zoning Law, Article VIII, Section 164-59 of the Subdivision Law,
and relief from Article 16, Section 280-a of NYS Town Law to allow for a proposed subdivision of a
pre-existing/non-conforming lot owned by him. The lot is a landlocked parcel with access provided
over lands another parcel that has fee frontage on Morning Star Lane. The parcel contains 20.5+/-
acres, is located within the "RA" district, and is identified as New Scotland tax parcel id# 106.-4-8.
The Zoning Law, Article XIII, Section 190-99 and the Subdivision Law Article VIII, Section 164-59
require that all newly created lots have not less than 50 feet of fee frontage on a public highway. NYS
Town Law Article 16, Section 280-a requires a lot to have a minimum of fifteen feet of fee frontage on
a public street in order to obtain a building permit. The Applicant requests relief for the purpose of
allowing for this parcel to be subdivided into three lots, one of 5.1+/- acres, one of 8.3+/- acres and
one of 7+/- acres, with none of the lots having the required fee frontage on a public road.
Mr. Elliott: I would send on to the ZBA with an unfavorable response give the configurations
you have now. Rather than make that I would re-configure. With more research to see if
there is another right of way or something. We are setting the down up for precedent setting
with very long driveways. All three lots still need variances for drive. Even at 15-feet. I
would urge the applicant to re-think a few things. You have enough land to do some good
PB min. 5.07.09
Ms. Tuzzolo seconded the motion. All in favor motion so carried.
Referral to Town Board on proposed Local Law “A” of the Year 2009: Local Law proposing a
six month moratorium on receiving applications for the review for the construction of windmill.
Mr. Stapf: We have the Local Law “A” which is proposing a six month moratorium on the
construction of windmills. I sent everybody a copy of an invitation that came into the Supervisor’s
office from the Capital Communications Group that does most of the towers up on the hill. They were
indicating that windmills (we are talking about large windmills) interfere with their signals. I think
that is something that needs to be explored. I would recommend that we support the TB action of a six
month moratorium on construction of windmills so that they can prepare a proper documents
associated with wind power law.
Mr. Smith seconded the motion. Ms. Stewart stated that she would like to make sure that it is only six
months and that it does not get extended.
Mr. Stapf: I will amend my motion to support the six month moratorium and to recognize Ms.
Stewart’s recommendation that they keep it as short as possible. Mr. Voss seconded the motion. All
in favor motion so carried.
Mr. Voss will volunteer his service to the windmill committee.
November 3, 2009 meeting (election day) – Rescheduled to the second Tuesday, November 10th .
Minor subdivisions for the month of April, 2009
Workshop – “Guidelines and Standards”.
The next meeting for PB will be June 2, 2009 at 7:00 and a workshop at 6:00 p.m.