MM Notes: Town Board

April 16, 2009

Present: Town Supervisor Prisco, Bob Audia, Mike Murphy, Steven Turletes, William Murphy, Laura Hurley, and Mary Alex.

Wetlands Ordinance: Supervisor Prisco stated that she would like to start the meeting with a continuation of the public hearing on the Wetlands Ordinance. The complete ordinance can be found on the Town’s website. An opening statement from Councilman Murphy, who serves on the Wetlands Committee, started the discussion:

Councilman Murphy: The Councilman stated that the process of adopting the law has been going on for three years. A first attempt was made a number of years ago, but it was less focused and never came to a vote. As a new administration took over, the need for a wetlands law became apparent. A first draft was completed about a year and one-half ago and a public hearing was held. The Committee took back the comments, made some revisions and eliminated some of the protocols that were found cumbersome. The law was also condensed and underwent a legal review and approval. What is being discussed on this night is that revision and this is the third public hearing on the issue.

Letter from R.W Ciferri III: Supervisor Prisco read Mr. Ciferri’s letter into the record. Mr. Ciferri’s comments included, “This is an attempt to reinvent the wheel in that the State of New York currently has most of this on the books which are enforced by the DEC and other regulatory agencies. A particularly disturbing section of the proposed law is the part referring to vernal pools. I believe we are trying to legislate into law something that has no regulatory definition in the State of New York or in many of the states in the Northeast. No other community in Dutchess County* has thought it necessary to include regulation of vernal pools in their wetlands and water course laws. Vernal pools, by their nature, are temporary and hard to define. Including vernal pools in an ordinance of this kind would lead to negative, unanticipated consequences. It could adversely affect the property rights of owners to use their land. It could be used as a device to further restrict land use which is ultimately a basic individual property owner’s right. The law would put an additional financial burden on the landowner as well as the town. Because of its nebulous definition, it almost certainly would be the cause of litigation between landowners and the towns, not to mention the special interest groups who are better prepared financially than the town to pursue their process in court.

Further, as proposed, the law could and would be perversely used by special interest groups to further their own agendas contrary to the public good. I believe this law would be at least redundant and perhaps the cause for interpretation. There are state laws in place that are more than adequate to protect our water supply and the environment. The Town of Washington would be better served without this law.”

*Editor's note: The Dutchess County Township of East Fishkill Wetlands Ordinance does regulate vernal pools, and they been included and defined in other ordinances in New York and neighboring States.

Howard Schuman, Millbrook Matters: Mr. Schuman presented a petition to the Town Board for their consideration. He explained that over this past Easter weekend, it became clear that a growing number of people were becoming concerned about the inclusion of vernal pools in the proposed Wetlands Ordinance. “This resulted in an ad hoc online petition created by Millbrook Matters, which has grown to over 100 individuals supporting the recommendations of the Wetlands Committee to include vernal pools in the proposed wetlands ordinance before you. The petition is being submitted on their behalf with the intent of requesting that the Town Board approve the resolution before it for the new Section 396 Wetlands and Watercourse law of the Town of Washington as recommended by the Wetlands Committee and as posted on the Town’s website.” Mr. Schuman stated that he hoped the town board would take action on this tonight since it has been the subject of several public hearings over the last four years and it’s time that the Board brought this issue to a conclusion.

Letter from Stephen Kaye. Supervisor Prisco read his letter into the record. Stephen Kaye's comments were the following: “The problem with the vernal pool is two-fold. First is the uncertainty in people’s minds as to how to identify a vernal pool. Second there is a concern that the protections afforded by the legislation may be overly restricted (sic) in certain circumstances.” Mr. Kaye proposed a method by which both problems could be addressed. First, identify all vernal pools and advise property owners of their importance and the implications. Second, allow residents to refute these findings to a board and/or appeal to the ZBA. “If the foregoing procedures are followed, I believe that the problems created by drawing a 100’ line around a vernal pool can be mitigated; plus, through the process, owners will become educated,” stated Mr. Kaye.

Email from Steven Lynch (Planning Board member) Mr. Lynch’s email stated that he is in favor of including the kind of vernal pool provisions which Michael Murphy is suggesting in the town’s wetlands ordinance.

Alec Pandeleon Mr. Pandaleon states, “Whatever we do to vernal pools, let’s not do anything that is going to hinder the rights of a farmer to continue to plant on his land, land that might come under water seasonally.” Mike Murphy commented on Mr. Pandaleon’s statement, explaining that land qualifying for an agriculture exemption is already exempt from the wetlands ordinance.

Stacey Hoppen: Ms. Hoppen commended the Wetlands Committee for an excellent job. She further stated that vernal pools are important for many reasons. The fact that they are intermittent makes them very fragile. She believes that the general consensus is that the wetlands need protecting and vernal pools are a part of the wetlands.

Felice Manzi: Mr. Manzi stated, “In my opinion, this is all just another maneuver by these environmental obstructionists and special interest groups to dictate what people can do on their property. You can find a vernal pool on a deck. This is just another legal hurdle if someone wants to do something — it’s going to cost the property owners a big expense to get an attorney.”

Scott Tumblety: Mr. Tumblety referred to the definition page that states that a vernal pool would need to be at least 1/4 acre in size to be protected. The regulated area of the zone is 100’ for those wetlands that are more than an acre and 50’ for wetlands for those less than an acre. “It boils down to common sense; these areas are not suitable for many, many uses.” He further stated that he sees a procedure laid out in the law negating the need for Stephen Kaye's process. “If the property owner wants to proceed with an activity, he or she has to go in front of the planning board and there is a procedure to obtain planning board approval to do that activity within the buffer zone. That procedure is already there.” He added, “Whenever I see this wetlands definition, I see vernal pools as a subcategory. I don’t see vernal pools as outside the wetlands — I see it within.”

Attorney Richard Cantor, representing Rob Dyson, spoke. Mr. Cantor stated that he is not here as someone who is against protecting wetlands or vernal pools; he is here to suggest revisions. He requests that provisions be built into the law to create the ability to distinguish between those vernal pools that have some usefulness and those which are quite unimportant. “Once you make that identification, I would submit that saying that this 100’ foot controlled area or 50’ controlled area is arbitrary and inappropriate. It needs to be fact-determined; it might be 10’ or it might be 1000’ depending upon the particular pool or wetland and what it does and where it is situated, and what you need to do to make sure you’re not interfering with its constructive purpose. The standard should be that you are entitled to a permit if you can establish that you are not affecting the function of a vernal pool or wetland.” He also stated there should be provisions to relocate, move, or otherwise mitigate. He suggested that the board wait to find out what vernal pools there are and how they function. This will give the board what it needs to look at what the impacts will be. In conclusion, Mr. Cantor stated, “I’m not saying, ‘Don’t do this;’ I’m saying do it with more insight and information.”

Nan Greenwood: Ms. Greenwood reported that she is a volunteer with the vernal pools project. She had the opportunity to hear presentations, to go through training processes, and go on site to look at vernal pools. “There is a misconception that every vernal pool identified on that map is going to wreak havoc on property owners. We are being sent out to assess the relative importance of any vernal pool and there are vernal pools that are inconsequential, of no significance in the overall scheme of the ecological setting. Not every vernal pool is important. One of the goals of the project is to identify the importance. The other comment I have is that there is concern that property owners feel very threatened by this. Frankly, the property owners that we have visited have been enormously interested and supportive of the project. They want to accompany us on our visits to their vernal pools and a couple of them have asked if they can sign up with the Cooperative Extension so they can go out on other properties and see other vernal pools. They are really interested in the process. I haven’t sensed any threatened feelings from those people that we visited.”

Dr. Klemens, Research Conservationist, Cary Institute: Dr. Klemens prefaced his speech by announcing that his statements and submitted letter are those of his own beliefs and that of the administration of the Cary Institute. He stated, “Over the last year I have met with the Wetlands Committee, I met with the Conservation Commission and Mr. Beaumont, Chairman of the Planning Board, and provided commentary to the various boards described. I have also been following the progress you have been making on this ordinance. I have had a lot of conversations regarding concern that there are people who are opposed to this and those who are skeptical.” He emphasized, “There comes a time in a process when the absence of any legislative action is in fact a decision in itself. We are concerned we may be approaching this threshold.” He stated that there is a certain commonality among many of the things he has heard from people and in what he has read. “Various speakers asked why the Town of Washington needs this law —aren’t wetlands already adequately regulated?” He stated that certain fresh water wetlands consisting of 12.4 acres or larger are regulated by the New York State Department of Conservation and the Army Corps of Engineers. Much of this wetland protection is vernal pool protection, which is very compatible with agricultural practices.”

However, Dr. Klemens also explained that throughout the Hudson Valley and southern New York smaller wetlands are disappearing. He stated that New York State does have legislative provisions that allow municipalities to assume home rule of these unregulated wetlands. Dr. Klemens explained that many towns to the south and west already have this legislation or are in the process of adopting it. “Sadly, many of them have done it too late and have already lost a lot of those functions,” stated Klemens. He believes that these wetland regulations make these communities highly desirable and keep the property values high. He stated, “Although it would be desirable to know everything about every wetland before it passes into law, generally most laws establish standards which an applicant has to go through in order to demonstrate what wetlands are on his property, and whether there are environmental constraints. It would be nice to know about every wetland and every species in this town, but it’s really not practical to wait until that point.”

“Vernal pools are wetlands and they can be defined by a number of clear methodologies as wetlands.” He stated that vernal pools have important functions such as the recharging of rainwater that feeds the wells and public and private water supplies. They play a large part in nutrient cycling as well. Insofar as proposals made to pass the Wetlands Ordinance without the inclusion of vernal pools, Dr. Klemens stated, “In my experience no community has ever eliminated a specific type of wetland from an ordinance. That’s what is happening here. We are having a discussion about taking out a specific wetland type from a wetland ordinance. That’s unprecedented in my experience working with communities up and down the Hudson Valley. If you are protecting wetlands, you are protecting all the wetlands. I would ask you to rethink that particular idea.”

Dr. Klemens also commented on the buffer zone. He explained that the buffer zone is a regulated area, not a prohibited area. Some activities can safely be conducted in the regulated area after approval by the planning board and their thorough, thoughtful deliberation. “There is a lot of misinformation on that,” according to Klemens. He stated that he has served on planning committees and is a strong believer in giving planning boards the tools they need to consider various natural resource issues; however, “I understand and believe that natural resources are only part of the overall balancing the planning boards must do to weigh all factors on proposed development and subdivision.”

He also addressed another concern; that of legal issues. He stated that it has been his experience that legal challenges of vernal pool protection are often a result of an agency that is overzealous. “Basically in my opinion it’s not the law that’s defective; it is the application of those laws by often overzealous boards. However, he doesn’t think this is going to be the case here as this town has a strong, well-grounded respect for property rights.”

Next, Dr. Klemens then addressed the issue of the aerial map. He stated that it is a Hudsonia map developed by using a combination of sources. The vernal pools shown are predicted areas and need to be ground-proofed. Some areas of the map have been found not to be vernal pools. He stressed, however, that not all pools can be ground-proofed. Addressing the comment made by Mr. Manzi that there is a conspiracy, Mr. Klemens stated, “I do need to say what the position of the Cary Institute is on this — we provide science behind the environmental solutions as well as provide information and guidance as suggested and peer review of research. We provide guidance to municipalities on how best to provide a healthy environment for all species, including our own, while allowing for economic progress.” Supervisor Prisco asked how long the study would take. Dr. Klemens stated the group is looking at only 50 pools (about 50% of the total number) so it will not be comprehensive because they do not have access to a large part of the town. The biological collection will end around May 1 — the goal is to have something ready by the end of the year.

Frank Genova, CAC Member: Mr. Genova stated, “The first indication that vernal pools were going to be in the wetlands ordinance was given to me March 4, 2009 and it wasn’t through Mike. This is the first appearance of vernal pools in the resolution, so assertions that this has occurred over long periods of time is not accurate.” Michael Murphy responded, “This is not accurate. We had Dr. Klemens appear before us as a committee. (Frank interjected that he must have been sick and someone in the background stated, “No, you were there Frank.”) Murphy continued, “We also had a meeting from which I was absent and I asked Brad [Roeller] to chair. Vernal pools were discussed. I have the minutes for that meeting and that was months and months ago. We have had a number of meetings on vernal pools.” The debate continued until Supervisor Prisco interjected that there was no point in the discussion — “This is a disagreement” --and asked them to move on.

James Shequine, Town Planning Board: Mr. Shequine stated, “The town planning board should be understood as an agency of the Town Board and we do what they tell us to do by their laws. We need sound laws. We need a wetlands law. We do not have the proper structure in the present form of this law to regulate it. When issues come up, we should have a very strong direction from the law.”

Mike Murphy, Town Councilman and Wetlands Committee Chair responded by explaining the tools that will be available to the board. Mr. Murphy stated that built into the law is the requirement that when the law is passed, a wetlands consultant will be available, (much as an attorney is available to the board). This wetlands consultant will work with the planning board and building inspector when issues come up to both determine the legal aspects of land use and also the interpretation of the definitions, etc. That professional will be hired by the town. He explained, “When an application that involves a wetland comes before the planning board, the applicant along with the local CAC and the planning board themselves will go out and look at the property to assess what the issues are with that wetland — whether it’s a vernal pool, a creek, pond or whatever. They will then come back to the planning board during the process of presentation and the planning board will have the opportunity to hear the observations of that professional.” Supervisor Prisco asked Mr. Shequine how he felt about the issue based upon Mr. Murphy's explanation and Dr. Klemens speech indicating that once the study is done, there will be pools that have not been ground-tested. Mr. Shequine responded, “We want the regs to work with.”

Howard Schuman responded to Mr. Shequine, “I find myself somewhat in agreement with Jim [Shequine] on certain points; specifically the fact that the planning board recognizes vernal pools as being a wetland and something that needs to be regulated. I differ slightly on the need for the Klemens study to be completed first.” Mr. Schuman stated, “There has been a large amount of public input saying we need to have vernal pools protected; and the wetlands committee was directed to go back and do that. They did this over a course of a year with Mr. Genova being included and they came to a consensus; and it was looked at and approved by the town’s legal department.” Mr. Schuman went on to explain that plans to include vernal pool regulations in the wetlands ordinance started before the Klemens study even existed. And according to the law when an individual comes before the planning board with an application, it would be evaluated based on the standards in the regulations, on a case-by-case basis, using appropriate information, whether that information came from the Klemens study or was supplied by the Town' s own Wetlands Administrator, and a decision could be made. What would be happening, where appropriate, is mitigation - not a prohibition - but mitigation based on a regulation.

Frank Genova: CAC member, resident. Mr. Genova stated that Mike Murphy failed to mention that the professional would be hired at the applicant’s expense. Mike Murphy acknowledged this fact. Mr. Genova stated, “I’ve been on two committees — the original one where we had a tremendous amount of opposition and the second one where we had broad acceptance. Yes, a vernal pool could be a wetland if you want it to be. It could it be something else if you want it to be. We have not decided what that is. We have had trouble coming up with a definition. Let me tell you what a wetland is.” He held up a “Soil Map.” Mr. Genova stated that from this map you can tell if someone does or does not have a wetland on his or her property “because this has been on the map and these soils have been here for ten million years. You don’t need a committee — you don’t need people to come in and walk the land and see whether it’s a wetland or not. You have a map that tells you. As far as the streams go,--and this was the original intent of the ordinance--wetlands and water courses. You don’t need an expert to come out and argue the fact.”

“You stated earlier that agricultural practices near vernal pools could be pursued.” Mike Murphy responded, “I deferred to our attorney.” Frank challenged, “No, you stated it and you asked him (the attorney) to concur, to agree with you.” Mr. Genova went on to ask the attorney, John Gifford, about a hypothetical situation in which if he owned agricultural land, he could plant corn and apply an insecticide. “So this is good for vernal pools, right?” challenged Mr. Genova. “We don’t know what vernal pools are, so these little limitations and these abilities to do this that and the other thing are very nebulous and very confusing.” Someone in the audience interjected, correcting Mr. Genova by stating, “By Ag Law, we are required to stay 100’ from a wetland when applying pesticides.” Supervisor Prisco asked Mr. Genova if he was saying the law was too confusing and Frank responded “absolutely.” On another note, Mr. Genova asked how the board is planning to handle uses such as hunting and shooting clubs.

Adelaide Camillo: Ms. Camillo stated, “There is a lot of fear mongering here. There is a lot of fear about property rights, but I think there is a misunderstanding that this regulation is going to allow us to go out on people’s property and take back their land.” She asked the board if there is intent in the law to interfere with current situations unless there is an obvious and blatant problem. Supervisor Prisco responded that, no, there is no such intent. Ms. Camillo continued, “I have had conversations with Mr. Kaye because I was outraged by his editorial last week. He has a logging road near a wetland and I think that’s where a lot of this fear comes from.” It’s up to you Fussy and the board to try to get people to learn, and the more they learn the more they can appreciate the environmental issue. We need to ask, “Do you want to protect the water or not? Do you want to protect the environment or not? This requires coming out of yourself and considering the benefits for the whole community.”

Supervisor Prisco: Supervisor Prisco stated that she wanted to respond to Dr. Klemens. “I hear your comment that not doing anything tends to sometimes be a statement onto itself. Believe me, the reason we’ve kept these public hearings open and the reason we have not reached a decision is only because we wanted to get as much input into this law as we possibly can because there are very serious feelings on both sides of this. We, as a board, are not doing this to delay an action. It is hopefully to hear as many people as we can. We will come to a decision.”

Kathy Culkin: Ms. Culkin stated that she is just becoming aware of the issue; people are just starting to hear about it and trying to understand it. She encouraged the board not to rush to a decision.

Steven Van Tassell, Farm Owner : Mr. Van Tassell owns a 200-acre dairy farm that he plans, at some point, to develop. He said that by looking at the map, 40% of his property is wetlands. He stated that about 50% of these wetlands are manmade disturbances, including very healthy vernal pools. “This law is going to devaluate my property — it’s taking my property rights away from me, I believe,” stated Van Tassell. He added that if the law is passed, there are large amounts of property that we will need to be re-determined on the assessment roll. He added, “I am not speaking against the wetlands protection inasmuch as the undefined vernal pool regulation. The requirement section of this law is hard to understand — it has a tremendous impact. This man (referring to Frank Genova) has spent his career in the water field* — he’s on a committee and the entire procedure has absolutely sidestepped him and his influence on the vernal pool issue.” Supervisor Prisco commented, “The committee you refer to Mr. Van Tassell was the committee that put the wetlands committee together and yes the vernal pools have been discussed in committee. The wetlands committee, which included Mr. Genova, recommended the inclusion of vernal pools in the regulations. Finally, Mr. Van Tassell declared that the town does not have a major water quality issue that requires such extensive protection.

Editors Note: Mr. Genova is a retired Agronomist.

Kate Farrell: Ms. Farrell asked to comment on the statement from Mr. Dyson’s representative, on Mr. Van Tassell’s statement, and on Skip Cifferi’s and Steven Kaye’s letters regarding property values and development rights. “Are we so certain that if we protect vernal pools or wetlands, that if we build homes in a different way, that the properties won’t be as valuable? There is the possibility of housing where habitats are left undisturbed, where people have open space and live a little bit differently than the developments in Fishkill. I just want to raise the point that there are places where these natural resources are protected, homes are still built, and property owners still get value for their land.”

Tony Sloan: Mr. Sloan asked the board to keep in mind the fiscal impact of development.

Conclusion: By unanimous vote, the public hearing will be kept open until next month (May 14 meeting.) She asked the board to meet prior to that time to have a discussion on this issue. This public meeting will be held on April 30, at 7:00 p.m.

Comprehensive Plan: Jim Shequine reported that the steering committee has tentative final written reviews from each of the subcommittees. They are now working on the questionnaire in an attempt to obtain the views of the community. Their strategy includes the preparation and distribution of an introductory statement that gives educational information. It will be passed out to various groups within the community. They will then initiate a mailing to everyone alerting them that within a week or so the questionnaire will be sent to them. Kate Farrell asked if the survey is going to addresses. Mary Alex responded that she is figuring out a way to identify every property owner and most likely the post office will be used. Mr. Shequine states that he is hoping for a 30% or greater response.

Zoning Board: Supervisor Prisco stated that there hasn’t been a zoning update meeting this year; they are normally held in March. She asked Jim Shequine to talk to the zoning board as to whether or not a meeting is needed.

County Update and Stimulus: Margaret Fettes, County Legislator, said that the county has put in for replacement automobiles as none were replaced last year. Bonds have been approved for roadwork and bridges. Although the stimulus money has not arrived, Bob Audia explained the importance of acting quickly as there is a January, 2010 deadline. He explained that there may be even more than the original $24 billion because some states are refusing the money. Mr. Audia explained that projects have to be big, create lots of jobs, and products have to be American made. He said if there is a second round of money, smaller projects, such as our dirt roads, could be considered.

Park Update and Community Development Funding: Mary Alex reported that Warren McMillan attended a meeting at Dutchess County regarding Community Development funding. It is coming our way — the contracts are not signed yet. Ms. Alex also reported that Chazen told her that the DEC is fast-tracking our wetlands-crossing questions on the application and that it looks good. Construction could begin earlier than originally thought. Frank Genova recommended that if the town plans on using pesticides, they should make certain the person is certified.

Public Hearing on Expansion of Town Park: Supervisor Prisco opened the public hearing. She reported that the DEC is in the town’s favor and they received good reviews. DOT and DEC have asked that the town board be lead agency. One resident questioned the wisdom of new ball fields when there are not enough participants to fill the fields the town already has. Supervisor Prisco responded that when the project was in its infancy, there was more interest in baseball. The plan now is to put in an all-purpose field, but there is space to put in a diamond if interest in basement is regenerated. There being no further comments, the public hearing was closed. It was noted that funding came from a $100,000 block grant and the rest from a very generous donation. A resolution was passed making the Town of Washington Board lead agency. It was determined there were no significant negative impacts on the environment.

Recreation Department: Warren MacMillan reported that a yoga instructor will be starting soon. Classes will be held in the basement of the village hall, which will be renovated soon. Mr. McMillan recommended the appointment of Chris Muscari as Recreation Commission member. This was unanimously approved. New Recreation By-Laws have been developed and were adopted. Mr. McMillan was pleased to announce that a $1000 anonymous donation toward their scholarship fund was received.

Kevin Murphy presented a signed petition to the board asking the board to keep the pool open later on week nights. There were 50 signatures representing 120 family members who use the facilities. The petition indicated these individuals would be willing to pay more for extended hours. Kevin Murphy also mentioned that the snack bar is important as many people like to have dinner at the pool after work and stay to swim. Supervisor Prisco stated that it was a tough decision to close the pool earlier, but with budget constraints, the town had to make cuts somewhere. The town taxpayers pay $52,000 to supplement the use of the pool. Mr. McMillan stated that four staff members are needed to keep the pool open. Mr. McMillan added that during the last two weeks of August the pool is not used as much and it is very difficult to get lifeguards as they go off to college in the middle of August. Supervisor Prisco explained that the snack bar went out to bid and there were no bidders. Mike Murphy said if the town pool saw a significant increase in the number of memberships, perhaps the town could revisit this and extend the hours with the extra funds brought in.

Bookkeeper’s Report: Laura Hurley reported that the mortgage tax revenue may fall short. The Town has received about 70% of their revenue thus far. The good news is that all departments are doing their utmost to keep expenses down. Ms. Hurley is exploring new accounting software which could be shared with the village. She would like to invite the software representative to speak before the board in May. Ms. Hurley noted that the public hearing on the village budget remains open partially to give the town board the opportunity to voice comments. A major change affecting the town is the strong possibility that professional rescue services will need to be extended from five days a week to seven, costing an additional $50,000/year. That is more than the town budgeted for.

Town Clerk Report: Mary Alex asked the town to approve the minutes for February and March. All were in favor. She mentioned that there is a donation box in the town hall through the end of April seeking donations for baby products. All were encouraged to donate and spread the word.

Planning and Zoning Report: Mike Murphy stated that the ZBA has made a decision that the motorcross use on the Danielle property is in violation.

Buildings and Grounds: Bob Audia reported that he has been looking into the furnace leak — this needs to be discussed soon. The ramp was measured and Mr. Audia is investigating how best to install treads. They should be installed in the next two weeks.

Roadways: Due to concerns raised by residents over several dirt roads being impassible earlier this year, a committee has been formed to study the roads. Councilmen Audia and Murphy, and Highway Superintendent Brownell will serve.

The meeting adjourned at 10:45 p.m.

Submitted by: Joan Trombini