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2000_12_13 Planning Board Minutes
AMENDED MINUTES OF THE REGULAR MEETING OF THE PLANNING BOARD OF THE TOWN OF MAMARONECK Ni` DECEMBER 13, 2000, IN THE COURT ROOM, TOWN CENTER 740 WEST BOSTON POST ROAD MAMARONECK, NEW YORK Present: Marilyn S. Reader, Chairwoman May W. Aisen Robert A. Cohen Linda S. Harrington C. Alan Mason Edmund Papazian Also Present: Robert S. Davis, Counsel Ian A. Shavitz, Counsel Kara • Ronald A. Carpaneto, Director of Building N 1$ Mt Antonio V. Capicotto, Consulting Engineer ,Y Nancy Seligson, Liaison , 111 4 011. Barbara Terranova, Public Stenographer 'a .`om Terranova, Ka7a7es & Associates, Ltd. V4I JJI V 40 Eighth Street New Rochelle, New York 10801 Marguerite Roma, Recording Secretary CALL TO ORDER *sr The meeting was called to order by Chairwoman Marilyn Reader at 8:15 p.m. Ms. Reader informed those present of the passing in death of Board Member, Dick Darsky, a month ago. She said that Dick had been on the Board longer than most of the current membership of the Planning Board -- since February, 1994. He will be sorely missed by each member of the Board. His intelligence and his incisive contributions will be very difficult, if not impossible, to replace. The Board extends its condolences to the family. Ms. Harrington said she started the same day as Mr. Darsky and recalls his kind helping hand. APPROVAL OF MINUTES Ms. Reader asked if the Board members had reviewed the draft Minutes of October 11 , 2000 and if there were any amendments. After some discussion and changes made to pages 13 and 17, on a motion made by Dr. Mason, seconded by Ms. Aisen, the Minutes were unanimously approved as amended. Ms. Reader asked if there would be any objection to taking the next item on the agenda out of order, as the second matter, Freshwater Wetlands, Michael Moran, will be a faster matter. There being no objections, on a motion made and seconded, it was unanimously RESOLVED, that the Public Hearing be, and hereby is, declared open. The Public Stenographer was present for this meeting and her transcript will become a permanent part of this record. low Chairperson Reader read the application as follows: • Planning Board December 13,2000 Page 2 PUBLIC HEARING-FRESHWATER WETLANDS AND WATER COURSES PERMIT-Michael Moran-23 Fenbrook Drive-Block 309,Lot 11(adjourned 10/11/00;11/7/0o to 12/13/00) Ms.Reader informed those present that the Public Meeting was adjourned to this date. She asked Mr. Capicotto if additional plans with reference to comments made at the last meeting that were supposed to be submitted were received. Mr.Capicotto said yes. He said there was a mixup in the submission of these drawings. They were sent to the Coastal Zone Management Commission(CZMC),rather than the Planning Board. He said Mr. Moran did bring the originals with him this evening. Mr.Capicotto said it is up to the Board whether the Board would consider the drawings and, in the event that this happened he did prepare a Freshwater Wetlands letter. He reviewed it on the basis of his assumptions from the letter. Ms.Reader asked if a letter was received from the CZMC. Mr.Carpaneto said the letter was received tonight. Dr.Mason said there were several things the CZMC commented on and wanted the Planning Board to address. Unfortunately,the a copy of the letter is not available. Dr.Mason said that after Mr.Moran et al left,the CZMC had quite a discussion on it and there were several items that were addressed in this letter. There were several things the CZMC wanted the Planning Board to particularly address. Mr.Moran asked if there was any way that he can help. Dr.Mason said he doubts it. They have to see if they can find the letter. Ms.Reader said none of the Board has looked at the new plans either. She realizes they want to move on with this project,but without having studied the changed plans,they haven't had a chance to look at the documents in concert with the recommendations of the CZMC. Mr.Moran said this is the third time he is before the Board because of the paperwork not getting to the right people at the right time. Mr.Reader said she knows that it is clear to the applicants that documents submitted to the Planning Board have to go to the Building Department. Mr.Moran said it did go to the Building Department,at which time they were told to bring it directly to Mr.Alfieri. They were stamped by the Building Department,and the applicant walked it downstairs so it wouldn't get lost and hoped he might possibly have a decision tonight. Ms.Reader said she is sorry that has happened. It is not a typical snafu that the Board contends with,but she is uncomfortable making a decision when she hasn't even had a chance to think about it and there are changes in the plans. Ms.Reader asked if Mr.Carpaneto had a full letter. Mr.Carpaneto said he did have a full letter that was faxed. After some discussion,Ms.Reader read the bottom of page 1,which states, "We also note with some concern that the Zoning Board of Appeals("ZBA")has apparently granted a setback variance to the applicant without having referred this project to the CZMC. We request the ZBA be mindful of the Planning Board December 13,2000 Page 3 co) obligation to seek a consistency referral prior to permitting projects of this type;signed by Madelaine R. Berg,Chair. Dr.Mason said the two bullet paragraphs are the items that were discussed. Ms. Reader informed Mr. Carpaneto and Mr. Capicotto that the CZMC is recommending that the calculations of the dry well be based upon a full 270 square foot addition and asked if that is what the applicants have done. Mr.Capicotto said these calculations show the 175 sq.ft.net area. Ms.Reader said that is one factor. The Board is not bound by the CZMC opinion,but it can be taken into consideration. That is one factor she will ask the Board to focus on. Ms.Reader asked Dr.Mason to elaborate on the next factor. Dr.Mason said the house,as it exists,already encroaches on the buffer zone of the wetlands. This is a further encroachment on the buffer. That was probably the most protracted discussion, the further extension of construction on the buffer zone. It was something they wanted the Planning Board to look at. Ms.Reader polled the members of the Board in regard to what was raised earlier,whether to adjourn this matter for another month and asked the members of,the Board to speak to that. The preference is to give themselves time to look at the plans or if they think the calculations should be done for the full 270 sq.ft. rather than the 175 sq.ft. Either way,the Board should think about what information they feel they would need before voting. If the Board wants additional information,then it should adjourn for another month. Dr.Mason said he thinks the calculations based on the 270 sq.ft.is important. Ms.Reader said to either extrapolate it or interpolate it. • Mr.Capicotto said from the looks of it they are sizing for four(4)chambers,when they actually could get by with two(2). He hasn't checked the numbers,but if that were the case they probably would have that extra capacity for the whole addition. He pointed out that it would be possible to handle this portion of it,to approve it,based on the fact that there will be no net increase in the rate of runoff. For the Board to insure that,there would be an Erosion Control Permit process. Usually the two are merged,when they come before the Board for wetlands purposes. But,if Mr.Capicotto leaves that separate,they go through these and make sure the calculations are correct and that there are exposed areas of the addition. Mr.Moran said he would be more than happy to put in four(4)chambers. It calls for two(2),but he will put four(4)in if that will make everyone feel better. The machine is going to be there,so cost wise it is not going to hurt. The farther they get into the season,the harder it is for digging. Ms.Reader asked if there were any other comments. Mr.Papazian said basically the Board had looked at this as a consideration. He knows Mr.Capicotto delivered a letter from Dolph Rotfeld,as far as additional information is concerned. He said he doesn't think they have asked for that much. If the Board can get some feedback that indeed it complies,he doesn't think the Board raised too many questions during the consideration and maybe the Board can © proceed. Ms.Reader asked if there was anything else. Planning Board December 13,2000 Page 4 O Mr.Cohen said he is confused as to whether the Town engineer is satisfied with what's been submitted knowing that the project will be satisfactory,does the Board have to look at the plans he has before him or is he satisfied. Mr.Capicotto said for the most part his comments were addressed from what he can see. The one thing he can't check while sitting here are the dry well calculations. He can check that under the Erosion Control Permit process to make sure it conforms with the requirements. Mr.Moran reiterated that he can stipulate that he can do the four(4)right now,if the Board wanted four (4). Mr.Capicotto said aside from that,what he wanted was to be aware that the front line be planted,adding details,etc. That all seems to have been addressed. Dr.Mason said he thought there was a question about the wetland border. Mr.Capicotto said they hadn't shown the border on the plan,now they did show it. Ms.Reader asked how the plans differ,if they are now showing the wetlands border. Mr.Capicotto said a silt fence detail was added,the calculations were revised,flow direction arrows were added to show which way the runoff would run, so they would know if the silt fence was in the right location. © Mr.Papazian asked when they plan on starting the building. Mr.Moran said as soon as they get the permit. Mr.Papazian asked if they would start in this type of weather. Mr.Moran said yes. Right now it's an ideal time to do it,because the framers are not working. Ms.Reader asked if this is a part of the Fenbrook Subdivision. Mr.Moran said yes. Ms.Reader asked what the nonconforming aspect is. Dr.Mason said it doesn't conform with the setbacks of the stream for the wetlands area. The whole house doesn't comply. Ms.Reader said most houses don't comply. It is a nonconforming,consistent with everything else in Fenbrook. Mr.Moran said he is more than willing to do anything that the Board suggests or wants and to take care of it. Ms.Reader asked for a sense of the Board on whether to proceed tonight with this vote. ODr.Mason said it is not going to get any better. Ms.Reader said then the Board will proceed. Mr.Papazian asked if the Board knows that there is no net increase with this addition in the rate of runoff, from the information the Board currently has. Planning Board December 13,2000 Page 5 O Mr.Capicotto said that the calculations show that now,but he would like to sit down and run through the numbers. Mr.Papazian asked counsel what if the Board voted on it today and the calculations prove incorrect and there was an increase in the rate. Mr.Davis advised the Board that they should not vote until the Board is satisfied that the record before it supports the conclusion they are required to find. Mr.Cohen said then Mr.Davis does not recommend that the Board vote subject to the Town engineer's comments (inaudible). Mr.Davis said the code requires that as a condition of the approval,the Board cannot inaudible.... condition the findings. Ms.Harrington said there is no contingency. Mr.Davis said he has a comment about the recently received CZMC letter,page 2.It asked that this Board advise the applicant or the Zoning Board of the obligation to seek CZMC referral. He believes the chastisement was wrong. In the definition of action which is contained in the Waterfront Revitalization Law,a very broad definition,it says,"every permit or approval except",and then it refers to a list which includes individual setback or lot line variances. Therefore,no referrals to the CZMC is required. Dr.Mason asked if a wetlands buffer zone setback is the type of setback contemplated by statute or is it Onormal setbacks for severe side yards,etc. Mr.Cohen asked what variance the Zoning Board granted. After some discussion,Mr. Davis said it was an area variance, which would be within the narrow construction. Ms.Reader said given counsel's statement in response to Mr.Papazian's question,she asked for feedback from Mr.Papazian. Mr.Papazian said it is pretty clear the Board cannot vote on this matter today. Ms. Reader asked if anyone else had any comments on this matter. She said that she shares Mr. Papazian's opinion. She told Mr.Moran she wished things were different,but she would feel the Board would not be fulfilling its obligation to the community. Mr.Moran said he is not any closer to the Sheldrake River with this addition than they have been with the others. Even with the new house that's being built,not even 300 ft.away from them,he is not closer to the Sheldrake than they are with this addition and that's a whole house. Ms. Reader said for this specific project his engineers/architects have given certain calculations and numbers that the Board needs to have verified or disputed. Mr.Moran said he should have been told this before tonight. He informed the Board that he sent this in to the Department almost a month ago. OMs.Reader said she hears what Mr.Moran is saying and said she is sorry about that circumstance,but the fact is the Board has not received it until today. The Town engineer has not had an opportunity to review it and do his own calculations. He is not in a position to give the Board answers that might help Planning Board December 13,2000 Page 6 O guide the Board in its decision. She said the Board does not have the facts for each member to make a determination. Mr.Moran said the Town engineer already said if it calls for only two(2)dry wells,if four(4)were put in that would take care of it. Ms.Reader said that would only take care of one point. The other point was in the calculations,as to whether or not there is an increase in the net rate of runoff. Mr.Capicotto is going to make independent calculations. He also had said it is his impression,given what was on that document,that only two(2)are required. He still should be making an independent evaluation, as an engineer, of that statement's correctness. He was,in an effort to try to move this along,saying that based upon the document that was presented by Mr.Capicotto's engineer,and if that proves true than that is all that would be required;two (2)but showing(4). She said Mr.Capicotto at the same time is not saying,based upon his independent verification of the facts that two (2) is all that would be required, but four (4) would more than accommodate the increase of impervious land for the 270 sq.ft. She said in doing the calculations,she asked Mr.Capicotto to make the calculations consistent with the CZMC recommendation,calculated on 270 sq. ft.,because it is their interpretation that that is in fact the amount of impervious land on the project. She said he should also,independently,make that determination too,as the CZMC might be mistaken in their judgment on that. If so,advise the Board. Mr.Moran said it is very unfair,and asked for the return of his original site plan. Ms.Reader asked if the Board has copies of it. Mr.Moran said the Board has a lot of copies of it. Ms.Reader said not to assume the Board has copies. She asked that tomorrow morning somebody bring them to the Building Department so they can get stamped. Mr.Moran said they were brought to the Building Department and stamped. Ms.Reader asked that it be done again,otherwise it will be another month and they will be no further. She said they can work together with this. Mr.Davis asked if he kept a copy that was date stamped by the Building Department. Mr.Moran said he would have to go and find them at the Zoning Board. He said Dr.Mason saw the plans,they were stamped and he looked them over. Dr.Mason said he looked at the plans,but does not recall if they were stamped. Mr.Moran said they were stamped by the Building Department. Mr.Carpaneto said Mr.Moran's engineer was supposed to send it to Dolph Rotfeld's engineer and never did. Mr.Moran said he is being told today he never received it. Mr.Capicotto said they spoke about several weeks ago. Mr.Moran said he is still not getting any information back from Mr.Capicotto that it has been taken care of. Planning Board December 13,2000 Page 7 Ms.Reader said Mr.Moran has to deal with his engineer. He has to make sure that the documents are received by the Town engineer and Mr.Moran must make sure that the Building Department receives them. Mr.Moran said the Building Department did receive them. Ms.Reader said they are not in front of the Board,and let's assume they are lost. Mr.Moran said this is the second time. Ms.Reader said let's assume this is the second time they are lost,and that's regrettable. If the Board does not have them in their hands within the next week,then the Board will be in the same position next month and that's not a position either he or the Board wants to be in. Mr.Moran said that's for sure,and thanked the Board. Mr.Carpaneto said he had a conversation with Mr.Capicotto,said he was going to give him copies which Mr.Capicotto requested,and it never happened. Mr.Carpaneto said the copies that came to the Building Department went to the CZMC for review. Dr.Mason said the CZMC information did not have the delineation of the buffer. Ms.Reader said she did not have a copy of the CZMC letter,which was supplied. OA break was taken at this time for the secretary to make copies of this letter for Board review. On a motion made and seconded,it was unanimously RESOLVED,that the Public Hearing be,and hereby is,adjourned to the January,2001 Planning Board meeting. Chairperson Reader read the next application as follows: PUBLIC HEARING-FRESHWATER WETLANDS AND WATER COURSES PERMIT-Levine- 10 Evergreen Lane,Block 309,Lot 21(adjourned 6/9/99;7/14/99;8/11/99;9/8/99;10/13/99;11/10/99;12/8/99; 1/12/00 to 3/8/00;4/12/00;5/10/00;7/12/00;8/16/00;10/11/00 to 12/13/00) Ms.Reader informed those present that the public hearing on this matter was closed October 11,2000. The meeting today is for an open discussion of this matter. Ms.Reader suggested considering whether or not that water channel adjacent,at which a retaining wall is proposed on the project,is deemed by this Board to be either a stream or a brook or is it neither. She is going to recommend that there is not a distinction between whether something is a stream or a brook. It is her recollection the Board has been given two different conditions,one that is in a subdivision handled by this Planning Board made up of other members then. They had a condition of no building within 20 ft.of the brook. She said that topic was discussed in the Minutes of August 16,2000 and of July 12,2000 and noted relevant pages. She said she thinks it was in the filed plat that this Board interchangeably used the term stream instead of brook. But the definitions the Board had been presented by counsel,Judith M.Gallent,on August 16,indicated that those words,even in dictionaries,were used somewhat interchangeably. If the Board wants to designate just the use of the word brook,that's fine. She said if the Board thinks there is a meaningful distinction between them,then the Board should advise her. Ms.Reader feels the Board should first decide if that channel is either a brook or a stream,such that there is no construction permitted within 20 ft.of it. If it is a brook subject to the ban on construction that will determine what else the Board should proceed on. Planning Board December 13,2000 Page 8 Mr.Davis said he agrees with Ms.Reader. He suggests another way of thinking about it is to say the Board's job,rather than to define those terms, is in the most reasonable way that the Board can, to determine the meaning of the terms as they were used in the plat or resolution rather than to be bound by a literal dictionary definition. After some discussion,Dr.Mason said to define the meaning of any of those terms in the statute or in the plat as a waterway. If it's a waterway,then treat it as such. Ms.Reader said there seems to be a question as to whether or not there is a difference between a perpetual run of water or when there is intermittent run of water through a channel,and based upon this distinction whether or not it is considered to be a brook or a stream. Dr.Mason asked if that isn't an artificial definition since it is only a concern to the Board when it is running. When it's not running,there is a dry period and who cares. Ms.Reader said she thinks that's a very fair premise. The reason one would think this was of significance was not in.the best of weather,but in the worst of weather or bad weather. That is why there is concern about it and that is why perhaps that condition was set. On the other hand,if he wants to remind the Board of the definition the Board was presented with as an aid to them,she doesn't think the Board should just forget them. Ms.Reader asked if the Board wanted her to read pages 108 and 109 from the Minutes of August 16,2000,by Judy Gallent,which she did. Ms.Reader said that the definition is, "body of running water especially when moving over the earth's surface in a channel or bed as brook,rivulet,or river. The B definition is steady flow of such body of Owater." "Mr.Dorsky: What's the definition again?" "Ms.Reader: The 1A definition is the body of running water especially when moving over the earth's surface in a channel or bed as brook,rivulet,or river. 1B is a steady current in such a body of water. 2 is the steady current of a fluid. 3 is a steady flow of succession. The rest of them are inapplicable." "Mr.Papazian: My point is it has to be steady as opposed to intermittent. It's not a stream,if it's intermittent." "Mr.Darsky said we need a definition of stream,then later on said we need a definition of brook." "Ms.Reader said brook is a small natural freshwater stream." "Mr.Darsky said I figured it was going to come back like that. So the question really is...." "Ms.Reader: What is a stream." Mr.Davis said the way to sum up the advice is that there is no firm distinction between stream and brook. The words are often used interchangeably,they may have different connotations,generally speaking they refer to water that moves in the channel and finally passes to a larger body of water. They are distinguished from surface waters which flow over land,but without being confined to a particular pattern. Ms.Reader said another thing that came up when reviewing the Minutes with reference to terms. Mr.Capicotto said the plans for subdivision which are on file,show two such waterways that include the property. One was labeled a"brook"and that is the one farther to the north from the other detention basin opposite the Fenbrook Subdivision. The one in question was called an"intermittent brook"on the plan. Planning Board December 13,2000 Page 9 Ms.Reader said those have been marked Exhibits B&C on August 16,2000. She said if he needs to see those,they can be obtained. Ms.Reader said it might be worthwhile to focus on this,as it may be the first issue. Ms.Aisen said she would go along with the thought that whether it is intermittent or constant,it is the same term,referring to the same waterway,because the issue is how does it behave in bad weather. Ms.Reader asked if Ms.Aisen is saying regardless of whether it is intermittent or continuous,she would deem it to be... Ms.Aisen said the body of water that collects is what the Board has to measure. Ms.Reader asked if anyone has a different view than that. Ms.Harrington said the water follows the channel. In that definition,it mentions channel. Ms.Reader asked Mr.Papazian what he thought noting that on August 16,2000 he expressed a view that something that is intermittent is not a brook. Mr.Papazian said it is very difficult to go back in time to see what was put down on a piece of paper when they didn't refer to anything specifically. They referred to channel,referred to a stream,and they didn't specifically name what that stream was. He feels that is where the Board is right now. He doesn't see how one can draw a conclusion. He doesn't know how often that water flows and he guesses it's variable. O Obviously it is closed more often than not,but if the Board is asking for his interpretation,he thinks we can say a stream and brook are the same thing. For'all intents and purposes,he has no problem with that. The problem he has is whether that stream that is in the plat is the stream that's being referred to in the resolution. Ms.Reader said in that channel. She said before making any conclusion,that waterway that is on lot 21, let's call it channel. The question now is,is that channel in the Board's impression,reasonably the brook that has the restrictive covenant. Mr.Papazian said that sums up the question that is referred to right now. He said his interpretation is that it is not the one that is referred to over here in that it is not flowing constantly. Probably if looked at,he doesn't know how many days it does flow,but it is not a constant flowing stream. His guess is that it flows a handful of times as opposed what a stream usually does. Ms.Aisen asked what it's based on. Mr.Papazian said it is based on the neighborhood itself. He thinks it will flow when there is a major rainfall. After looking at the area obviously it has its problems and that's been purposefully brought out in the presentations. Dr.Mason said it flows whenever it rains for several days,until the soil drys up. Ms.Reader went back to Mr. Capicotto's statement and asked if it is significant that in the drawings, exhibit B or C,from the summer meetings,July 12 or July 16,that there is a distinction in the statement as to brook on one drawing relating to the body of water that flows off of lot 20. Q Mr.Capicotto said that is the one in question. The channel they are talking about is the one that comes from lot 20 and cuts across the driveway. Ms.Reader asked where the other one is. Planning Board December 13,,2000 Page 10 Mr.Capicotto said the other one is on the north side of the subdivision. Ms.Reader asked if that is the one marked in blue by Mr.Young,the second one. She asked if he thinks it was significant in the plans of the subdivision that the Planning Board was reviewing for the subdivision project off of Fenbrook that there is something called the brook and something at lot 21 that is not part of that line called the brook that is now called the intermittent brook. Ms.Reader asked the secretary if she had a copy of the exhibits B&C from the July 12 or August 16 meeting. The secretary did not have copies of those exhibits. Mr. Capicotto said he didn't think Ms. Roma would have copies of those as they are original Mylar drawings. He said they are probably in the drawer in the Building Department. Ms.Roma said she would not have the Mylars at the meeting. Mr.Carpaneto said he will get them. Mr.Davis said that someone should read into the record exactly what Mr.Carpaneto is looking for. Mr. Capicotto said these are drawings entitled,Fenbrook Associates,prepared by William Morgenroth P.E.,numbers 1 through 14,dated June and August,1985. Q Ms.Reader said they are focusing on the documents specifically printed as of that day were exhibit A,B and C;exhibit B is sheet 10 and exhibit C is sheet 11. Mr.Capicotto said he is looking at exhibit B,sheet 10 of that set,and it shows lot 20. Mr.Davis said the public can listen to the discussion,but doesn't have to see everything that is referred to. Mr.Capicotto said on this sheet shows lot 20 and also shows an intermittent brook,which is labeled. Ms.Reader informed Mr.Young and Mr.Marcus if they would like to come up they are welcomed to observe,as she thinks they are very interested in this. Mr.Capicotto said it is labeled intermittent brook. Mr.Davis asked Mr.Capicotto to describe what he is referring to for the record.. Mr.Capicotto said this panel is labeled an intermittent brook running through lot 20 and at the southern edge of lot 20,showing on the ground contours are dams which would have created the detention basin which is now on lot 20. Ms.Reader asked where lot 21 is in relation to this. Mr.Capicotto said this is lot 21 which comes off the semicircle with the driveway going on the west side of lot 20 going south and then it ends as the flag part on the south side of lot 20. Ms Aisen asked the distance between this intermittent brook and the driveway of lot 21. Mr.Capicotto said the intermittent brook would run under the driveway. He said the intermittent stream continued before the dam was created,but since the dam is there,the southern edge of the intermittent • Planning Board December 13,2000 Page 11 O ' stream would be approximately 115 ft.from the driveway and then it goes into a pipe. That pipe,as it stands now,passes under that driveway and then opens up again into another depressed channel. Ms.Reader asked if that is the channel the Board is talking about on the side of lot 21 where the wall will be. That's where it lets out. Mr.Capicotto agreed. Ms.Aisen said the stream lets out into a channel and the Board's problem is whether to allow construction within 20 ft.of that channel into which this is being emitted. Ms.Reader asked whether the channel is on lot 21 and is this intermittent brook,that before construction, used to continue across lot 21. Ms.Aisen this is one waterway and asked where the other one is. Mr.Capicotto said on exhibit C,sheet 11,there is a second waterway which is entitled simply,"brook", on lot 25 of the subdivision. That brook also enters a pipe and then emerges into another channel labeled "brook". Ms.Reader asked where is that channel labeled brook;if you are looking at exhibit C,she is pointing to something called brook that is at the bottom most drawing on the page. Mr.Cohen asked Mr.Capicotto if that is outside the subdivision. Mr.Capicotto said it appears to be outside of the subdivision,and may be the tributary to the Sheldrake. That pipe may be passing under Fenimore Road. Ms.Reader said then this brook on exhibit C continues over to the binder and asked what that leads into. Mr.Capicotto said from the direction arrows,it looks like there are two brooks converging at this point. The southern portion is coming from lot 28 or lot 27. Ms.Reader asked where lot 27 is in relation to lot 21. Ms.Reader said they are looking at a subdivision map prepared for Fenbrook Associates,dated June 25,1985. After further discussion,Ms.Aisen said they are still pretty far from lot 21. Mr.Davis said to read the condition that appears on the subdivision plat. Mr.Shavitz,Board counsel,said on this particular plat under note section#5,it stated'no structure shall be constructed closer than 20 ft.from the top of the bank of the brook.' Ms.Reader asked if there is a brook on the filed plat. She said her recollection is that,and this is what counsel is going to discuss,is there any agreement as to what's on the filed plat. She asked Mr.Young and Mr.Marcus whether or not a brook was noted on the filed plat although there was a condition set. It is her recollection that there was no notation of a brook on the final plat. Mr.Nichols said they did not discuss either a stream or brook. Mr.Cohen said that refers to zoning law and the deed restriction. Planning Board December 13,2000 Page 12 Ms.Reader said they are not interested in the deed. The deed gives a civil right to enforce a restrictive covenant. The deed,in itself,is of no significance to the Board's application of the subdivision restrictions and the issuance of a Freshwater Wetlands Permit. Mr.Davis said the theory is that the restriction in the plat was intended to incorporate some conditions based upon exhibit B and exhibit C. They don't know whatever language is in the deed,how it got there and who modified it. Ms.Reader asked whether it was relevant to the Board when they were doing this. That civil remedy they can use between themselves,apart from whatever decision the Planning Board makes. Mr.Davis said if they say that the deed was relevant,they can say that the plat was covered in any event. Ms.Reader asked for the restrictive covenant to be read again. Mr.Shavitz again read the restrictive covenant that was on the plat. Ms.Aisen said they are trying to identify the brook. Mr.Davis said that question has meaning. Maybe it would be a good idea to look at each of the streams or brooks independently and ask what meaning it would have if that covenant/restriction applied to that brook. Ms.Aisen said no brook would be within 20 ft.of the construction. Mr.Davis said it seems to be the question you have to ask. To see what the meaning would be if that condition applied to each of those bodies of water. Ms. Aisen said so far they have identified three (3)brooks on these two (2) exhibits; the two (2) converging ones and another one. Ms.Reader said the two(2)converging ones are called brooks. Ms.Aisen said she doesn't know what they are called. Mr.Shavitz said they are called brooks. Ms.Reader said in exhibit C they have two that converge almost like a parabolic. The language there says brook. In exhibit B,coming off lot 20,you have a channel that is marked and labeled intermittent brook. Mr.Davis said to be literal about what exhibit B says:starting up on the channel,near the north arrow, the brook appears with an arrow pointing more or less south;several inches below that the word brook appears again. In the middle and further south,the word intermittent appears and then the word brook appears further down. He said he doesn't know whether the repetition of the word brook is intended to mean there is a portion where it is intermittent or whether the whole thing is. You can have a constant flow here which would be interrupted. Ms.Reader said since water flows in a direction,you wouldn't have constant,intermittent,constant. Ms.Aisen said the Board agreed and she proposed whether it was intermittent or constant it will still be considered a waterway. Ms.Reader said that was Dr.Mason's argument:when it rains the water is when the water is an issue. Obviously when it rains is when the intermittent brook flows water. Planning Board December 13,2000 Page 13 Ms.Reader said that the structure is definitely within 20 ft. The retaining wall is right in the bank of the channel. Ms.Aisen asked if there is a channel within 20 ft.of the wall. Ms.Reader said the wall is actually part of the bank of the channel. She asked Mr. Capicotto if the retaining wall is on the bank of the channel. Mr.Capicotto said it is actually proposed to fill in part of the channel and construct a retaining wall. Ms.Reader asked if it is shoring up the northern wall of the channel. Mr.Capicotto said yes. Mr.Cohen asked which channel. Mr.Capicotto said it is the intermittent cross channel. Mr.Cohen said the two larger brooks that converged into one. Mr.Capicotto said no. Mr.Cohen asked if they are talking about exhibit"C". Mr.Capicotto said yes. Ms.Reader said the question that is raised is when saying constructed does that include retaining wall,or do they mean something like the house. Mr.Capicotto said he thinks Ms.Gallent looked up the definition of structure,and it was apparent that wall was included and part of that definition. Mr.Capicotto said in looking at the channel now it cannot be determined based on the flow now,how it acted before the subdivision was constructed. Ms.Aisen said Mr.Capicotto has identified a brook,and asked where is the brook on which the retaining wall is proposed. Mr.Capicotto said after the intermittent brook on lot 21 passes into the pipe,at the outlet of that pipe is on lot 21 and in order to construct a driveway they want to extend that pipe and build a wall. Ms. Aisen asked what the question is then, as the proposed wall is clearly less than 20 ft. from the channel. Ms.Reader said does the restriction of 20 ft.apply to that channel. Ms.Aisen asked what would determine that. Mr.Capicotto said they are referring to"the"brook. Ms.Aisen said she knows they are referring to"the"brook,but did the person who wrote it think carefully about definite articles,etc. The board does not know that. Mr.Cohen asked why is it used in a singular. After some discussion,Ms.Aisen asked if that restriction was already in place. Mr.Carpaneto said yes. Planting Board December 13,2000 Page 14 Ms. Aisen asked if something was already constructed, can the Board assume therefore that whoever constructed or approved of the construction of that bridge knew what he or she was doing and knew that that was not the brook. Mr.Carpaneto said he thinks that the term structure was used to refer to a house. Mr.Davis said notwithstanding the definition in the code. Mr.Carpaneto said yes. After some discussion,Ms.Aisen asked because a bridge was once approved,that a wall would probably fall into the same category of structure as a bridge. She asked if the Board can assume that since that bridge was approved and it was within 20 ft.that they could also construct a wall within 20 ft.because somebody went through this once before. Mr.Davis said there are a number of inferences you can draw. Mr.Davis said the Board is saying after the restriction was adopted the code enforcement officer nevertheless approved a permit for those things. • If the Board concludes that that bridge is a structure within the meaning of that restriction,there is some need of evidence about the code enforcement officer's view of whether that was the brook referred to. Mr. Davis thinks that is within the realm. He said in response to Ms.Aisen's question that that is the one permissible inference from those facts. Ms. Reader asked if Mr. Davis'inference is that that was not the brook that is restricted. Another inference articulated is that structure doesn't mean wall. Mr.Davis said that is an alternative approach. Mr.Shavitz said looking at these notes where the condition is found,the notes are more specific where it intends to be more specific. For example,they talk about discharge control structures. They talk about buildings and walls. For example in note#4,and these are unrelated notes on the subdivision plat,they say the property is located in the R-30 zone,all buildings constructed on the property. In the note#3,it talks about maintaining clear discharge control structures in the retention area. It seems where they wanted to be specific,they might have been specific. Mr. Davis said within the code definition,building is a type of structure. A structure is anything constructed or erected the use of which requires location on the ground or attachment to something having location on the ground. Ms.Aisen said when they want to be specific they are. Mr.Davis said one reading of structure is that it is a broader term. A building is a structure,a bridge is a structure,a retaining wall is a structure. After further discussion,Mr.Davis said the Board is not bound to consider structure within the framework of a condition. The Board can consider whether the evidence leads the Board to the conclusion Mr. Carpaneto has come to which is that the word structure is referring to building. He is not suggesting the Board has to do that,only it is another way of looking at the problem. Mr.Capicotto said from an engineering standpoint,he tends to question not what the words mean and all O he can come up with was there is a channel,you don't want to obstruct the flow of water through that channel. That is the only reason he can think of for them putting in the restriction. In this particular circumstance,you have a pipe which is discharging water. What they are proposing to do is extend that pipe a certain length, 10/15 ft.,and then it will still discharge the same water. That wall they are proposing by the driveway would not interfere with the flow of the channel,since at that particular point the channel is going through a drainage pipe. Planning Board December 13,2000 Page 15 Ms.Aisen asked when the pipe was put in. Mr.Capicotto said it was put in as part of the subdivision. Ms.Aisen said it was put in after that restrictive clause. Mr.Capicotto said it was part of the design. Mr.Carpaneto said all physical work was done at that point. Ms.Aisen said it is a structure and is within 20 ft.of the channel. Dr.Mason said it is part of the channel rather than a structure. Ms.Aisen asked what is a good way of coming to a solution and resolving this. Mr.Papazian said the Board concluded that the stream was a brook. The Board concluded that they cannot build within 20 ft.of the brook. The Board has also concluded that there is more than one brook on the plot plan. The Board now has to conclude whether indeed the structure that is proposed is within the channel. Ms.Reader said also,does the restriction apply to that type of structure. Dr. Mason said based on his recollection of discussions during the subdivision hearings, it is not appropriate. Ms.Reader said nothing off the record is appropriate. Someone's recollections of what may have been said by each individual member of the Board during the subdivision hearings,unless there are Minutes to review,is not appropriate for this Board to consider. This Board is bound by the conditions that were set in granting the subdivision. Mr.Davis said the Minutes can be looked at. It is not relevant,but may be viewed for accuracy. Dr.Mason said he goes by personal knowledge. Mr.Davis said if Dr.Mason wanted to explain the basis of his vote,it would be useful for the rest of the Board to understand that. Dr.Mason said there was quite a bit of discussion when it was proposed and being laid out. Eventually a meeting was scheduled in Conference Room A. Present were several individuals who are no longer with the Board. One of the things discussed was the increased rate of runoff,the flooding anticipated,cutting as many trees as they were,the building of the area,the impervious area with results in additional flooding in that area. That has proven to be a well founded concern. He said Mr.Maloney owns that piece of property and owns the property next door that he was building his own house on. In the course of the discussion,he gave assurances that that property would remain vacant for conservation and drainage retention purposes. His assurances were accepted. They were put in the record to the extent as seen. They were not properly memorialized. Ms.Aisen asked what property he is talking about. ODr.Mason said he is talking about the property that was originally owned by Mr.Maloney. Both pieces of property,and detention and water flow involving both pieces. Eventually he disposed of both pieces of property and now Ms.Levine is in the position of wanting to develop that. Planning Board December 13,2000 Page 16 Ms.Reader said Dr.Mason said Mr.Maloney had indicated this would be preserved for detention. She asked meaning lot 21,as well as lot 20. Dr.Mason said the part of plot that Levine was on,together with all detention. Ms.Reader said despite that recollection,it was clear it was subdivided before it was sold. Dr.Mason said it involved both pieces. Ms.Reader said that is her concern. It is one thing that he is saying something,but even if they had the record of that conversation prior to the grant of subdivision,her point is the Planning Board made the decision and a determination that lot 21 is a lot that arguably can be built upon and is not subject to the restriction that Dr.Mason may have thought should have been placed on it. It is a fact that the Planning Board did not do that. Dr.Mason said what Ms.Reader is stating is absolutely accurate. Ms.Reader said the Board cannot hold this property to a higher standard than the subdivision as created. Theoretically,to allow building on that lot,from an engineering point of view to say the intermittent channel adjacent to lot 21 is the brook,falls within the context of what the restriction applies to. Would that lot be able to be built upon and make it a safe lot to build upon. Mr.Capicotto said that question was asked over the summer. There should be a letter in the file from him saying that a profile was done of the flag portion of the lot. Based on a maximum of 10%grade,you can't Q make that flag portion into a driveway without the retaining wall. It wouldn't be that safe a driveway,as you would have if you had a wall and can make a level and a nicely sloped driveway. Without the wall, the driveway would have ups and downs in it and would have some steep slope in it,but it is traversable. This is to make the driveway out of the flag portion of the lot,without building the wall. inaudible Ms Aisen asked if it will be of legitimate width. Mr Capicotto said yes. Ms Reader asked if there would be space for emergency vehicles. Mr Capicotto said it would depend on the size of the vehicle. Mr Papazian said it was concluded in the summer if the driveway was built without this retaining wall, it would be unsafe. Mr.Papazian asked if the building code has changed since 1985 when the original plot was done. Ms. Reader said on one hand she agrees, but while listening to Mr. Capicotto about the fact that the concern might be whether or not there is an obstruction in the flow of water. In addition,given that it may not be safe to construct a house on that flag lot without shoring up the bank of the intermittent brook, strikes Ms.Reader that the restriction was intended to apply to it. Ms.Reader said she is troubled with that. O After further discussion,Mr.Papazian said the Board has to conclude it is a buildable lot and the only way to get into the buildable lot is through the flag lot. The Board has to conclude that the intermittent stream isn't what they are referring to on the plat. inaudible Planning Board December 13,2000 Page 17 Mr.Papazian said you have a buildable lot,you have this language in the plat and how does the Board reconcile all of it. Now the Board is saying they didn't intend to make this restriction that you couldn't build on this very buildable lot. Ms.Reader said you have a distinction between exhibit B and exhibit C,which is this language,something called intermittent,something called the brook.... Ms.Reader said the restriction applies to the brook. She said generally when the Planning Board does restrictions on filed plats,it is subject to approval by the then attorney negotiating it with the attorneys of the project. Mr.Davis said a motion does not have to be made at this time,but it is important to get a consensus of the Board in order to prepare a resolution. Ms.Aisen asked Mr.Papazian to repeat what he previously said. Mr.Papazian said the Board knows it is a buildable piece of property. The Board knows there is only one way in. The Board has to assume when the planners did the subdivision that this is the way they wanted them to come into the property. Therefore,when they put the restriction on the plot plan as far as brook or stream is concerned,they were not referring to the intermittent stream as referred to lot 20 on the plot plan,exhibit B. Mr.Capicotto said exhibit"D"says brook,exhibit"B"says intermittent brook. Ms.Reader said it is exhibit"B"in reference to Mr.Papazian's comments. f� Ms.Reader asked if Ms.Harrington had any comments. �J Ms.Harrington said she has very definite thoughts. Ms.Reader said Ms.Harrington doesn't agree with what Mr.Papazian and she has said. Ms.Harrington said no. The point is there are very definite issues here. When there is rain and there is flooding that most definitely becomes this body of water. Anything built around it would most definitely impact it. The language in the subdivision is vague. She doesn't know whether they made it that way purposely based on assurances at the time that this wouldn't really be built upon,that they didn't concern themselves so much with identifying which brook they were speaking about and she would rather err on the side of caution. Ms.Aisen asked Mr.Capicotto if he said he was thinking in terms of the impact because that pipe is being proposed to be extended so that the flow will not be impeded by this structure. She asked if he was looking at the affect of the structure in interpreting,with which Mr.Capicotto agreed. Ms.Aisen said Mr.Capicotto thinks this particular structure will not obstruct the flow. If they go along with what Mr.Papazian had said and Mr. Capicotto's reasoning that in any case the flow will not be impeded,there will not be an exacerbation of flooding in bad weather. She asked if he would say that the structure could be approved. Mr.Capicotto said yes. Mr.Cohen said he agrees with Mr.Papazian concerning the definition and the record. OMs.Reader said it is obvious that no one is locked into what they say this evening. It is going to be a close call,one way or the other. The Board needs four(4)to approve. This is only one step of it. Mr.Davis then explained the next steps to be taken. Planning Board December 13,2000 Page 18 Ms.Aisen said they are not going to have a consensus. Mr.Davis said the Board is not voting this evening on this matter. Dr.Mason asked if there is a reason not to vote. Ms.Reader said it would be helpful for the Board to have a draft resolution before them with all the factors before actually voting on this matter. Mr.Davis said when it is seen in writing,it will be a way to test their acceptance on this. Ms.Reader said if the Board assumes that this channel is the brook,the discussion would stop here. The discussion would not go any further and asked if that is correct from a legal point of view. Mr.Davis said yes. Ms.Reader said assuming,based upon the sense she is getting,that there may be at least a majority that might say this restriction does not apply to that channel adjacent to lot 21, then it will come back to consideration for wetlands permit should the Board approve it. The Board always considers the soil, erosion standard of no net increase in the rate of runoff. But,that's not the only standard. Often that is a standard. Historically,that is a significant standard for the Board in terms of public health and safety. That is not the only standard. When the Board is getting charged with whether to grant a Freshwater, Wetlands Permit,as to what this project will do to wetlands and how it affects the public health,safety and welfare and asked Mr.Davis if that is correct. Mr. Davis said for the record they are outlined in Mr. Capicotto's letter and read from the letter; "compatibility and consistency with public health and welfare;the only practicable alternative if no other activity is physically or economically feasible;and economic and social need for the proposed activity and the economic and social burden that would be imposed upon the public. Ms.Reader said the Board has been given the information and it will add to the volume and even if you paved a square foot,that adds to volume. But on the other hand,Mr.Capicotto has indicated that he has concurred with the calculations of the applicant's engineer that there is no net increase in the rate of runoff. In terms of increase in volume,there has been some discussion in an effort to give the Board,from the applicant's argument,a visual image as to what the increase in volume would be if they build to make it less significant in terms of health and safety. Ms.Reader said the visual image that she recalled is five (5)sheets of paper. Some people would say that would be too much inaudible. Ms.Harrington said she thinks anything that adds is too much. For the public and the people that live in that area it is a situation now to increase it even that much,it is not reasonable. Ms.Reader said suppose there was a larger retaining wall,so that would be factored into that. Suppose a larger retaining wall and the result in terms of water flow,both in runoff not being increased but volume being by that amount....inaudible. She asked if she understands if she feels the project should not be inaudible. Ms.Harrington said her feeling is that you have to prove mitigation. If you can't prove mitigation,then that is a basis for rejection. In her mind,no matter what you do or don't do this will create more of a problem. It's going to add to it. The Board has seen time and time again with the project with all the O mitigation in the world after it,look at the problem that is there now. It is her feeling,and it goes to the welfare of the public,is even one thimble full more is too much. Unless they can tell her they have a giant something that isn't going to add another bit of water problem to someone,she is going to say she doesn't think it is appropriate. She said that is why there is a public hearing. That is why people come and tell Planning Board December 13,2000 Page 19 the Board the problems. Regardless of what the Board sees here at the meeting,you have to take that testimony into consideration. Ms.Reader said she thinks one of the things the Board has to be cautious about,is not imposing on a particular applicant the charge of mitigating the problem that he has no control over and that his project doesn't contribute to. It is a preexisting problem. Ms.Harrington said she agrees with that,but everything that she has heard doesn't reassure her 100%that it is not going to add to it. Ms.Reader said"whether it contributes to the flooding raises the question of whether the project affects the public safety and welfare." Ms.Harrington said absolutely. Ms.Aisen said this is essentially a question that was raised a few meetings ago and she remembers saying he was showing pictures of the flooding on Fenimore and it can't be helped. It is an unfortunate circumstance. ....inaudible After further discussion,Ms.Reader said in addition it is undeveloped land which presumably is as good as a sponge. If taken in its natural state,it is a pretty good sponge. Even with this pretty good sponge, there is still flooding down south,or whatever direction it is. Mr.Cohen said the question is if this will exacerbate the existing problem. There is obviously a problem down there. The Town has to solve the problem. The Board has gotten through the first hurdle discussing the 20 ft.within the brook or stream or channel,now the Board is up to the next thing,and our expert, our engineer,has told the Board based on information supplied by Mr.Young and he has written up a draft letter saying that the water problem will not be exacerbated. The question is not whether there is a problem in the area, there is a problem in the area. The questions is, does this proposed structure exacerbate the problem. Mr.Davis said that is correct. Mr.Davis wants to make clear Board members have heard from the parties' experts and have received guidance from their own experts. They are entitled to make an independent evaluation of the evidence that is in the record. When you consider evidence from residents who testified,you can obviously consider descriptions of facts that people have observed. What you can't do is substitute for professional evidence,unsupported claims of"here's what the effect will be." If there was testimony that says"I don't believe the experts;regardless of what you say this is going to get worse", the Board has to test statements like that against what professionals on both sides testified to. In the end, based on the evidence in the record,it is the Board's determination to make. Dr.Mason said he has two problems. The Board has a duty to the Town not to make matters worse or permit matters to be made worse. He said he is asking Mr.Davis,does the Board have a duty to this applicant to ignore thirty(30)years of experience in dealing with,in this particular case,where we know that there is a problem. Mr.Davis said he thinks its the Board's duty to assess the application within the standards set forth in the statute. The Town acts through its legislature. The legislature defines how this Board is to carry out its obligation to the Town. On an application like this,those standards are set forth through the appropriate chapters of the Town Code. Dr.Mason also seems to imply that there is a reason to doubt representations made by particular engineers because they have made representations in the past which turned out not to be true. He said he doesn't know whether he heard Dr.Mason correctly or not. Planning Board December 13,2000- Page 20 Dr.Mason said he is not going to characterize the engineers that are present,but some of the engineering material he was looking at has turned out in the past not to be true. Mr.Davis said that may be true,and that Dr.Mason is entitled to assess the evidence that is submitted to the Board. He is certainly entitled to bring his experience to the assessment of that evidence. Mr. Davis said Dr.Mason has to decide which aspects of his experience are germane to that assessment and which aspects are not. Ms.Reader said the Board has an obligation to the Town. She said the obligation is to make judgments consistent with the standards presented to the Board before determining yes or no on an application. She said when Dr.Mason was speaking he was focusing on the fact that there is a flooding issue in that area. She said we are all concerned about the flooding in that area, but it is important for the Board as a Planning Board,to recognize that the issue here is does this project negatively impact upon that flooding and safety or does this project create no more than a negligible change and therefore there is no real significant impact on that problem. Recognizing there is a problem there,the problem should go before the Town Council who should try to deal with the flooding in that community. The Board should not blur the fact that there is flooding in the community and therefore say any new building here should not be permitted. Ms.Reader said this is an important decision the Board has to deal with one way or the other, but the Board also has to be fair in making this decision and be cognizant of the issue. The Board may have to say we have to divorce that bad situation of the flooding in that community so I don't take an emotional view of this project. The project should be reviewed on its merits and detriments. Dr.Mason said he resented the comment on inaudible. He thinks that was inappropriate. Given the diminimis argument,in project,after project,after project,he said she phrased it more eloquently than O most in saying negligible impact,but hundreds and hundreds of negligible impacts over the last fifty years has resulted in a very not negligible impact on that area of the Town and....inaudible. Mr.Davis said there is obviously merit to the comment that Dr.Mason was making. That is one of the major criticisms of SEQRA that in circumstances where cumulative impact analysis is neither required nor performed little bits of change tend to add up over time and are not considered in the process but over time their effects are felt. Nevertheless,Mr.Davis was thinking about another element of the earlier question which is the nature of the obligation the Board has to an applicant. He said he commented before on what he thought the Board's obligation was to the Town. He said he thinks it may be useful to think of the Board's obligation to an applicant in what a lawyer would call procedural due process terms,which is to say that an applicant is presented with standards which are defined by the legislature and sometimes implemented by regulations. He said he thinks a Board such as this should think carefully before it imposes standards which are different from those that are set forth in the statute that creates the permit that it's being asked to give. Dr.Mason asked if Mr.Davis is saying that if this Board were to unanimously agree to not grant this permit,that there would be no statutory support for that. Mr.Davis said no. He is not trying to enter into that discussion. That decision requires an assessment of the evidence that is in the record and he believes that the framework for which you have to assess that was the framework provided by the legislation in granting this. Within that framework,the assessment is the sole province of the Board members. Mr.Cohen asked if the applicant supplied enough information to satisfy the requirement of the statute. Mr.Davis said it is more complicated,because the Board has heard conflicting evidence as well. The O, question is,what decision are you prepared to make. Mr.Davis said the Board has to make a decision which is reasoned and supported by substantial evidence in the record. Planning Board December 13,2000 Page 21 OMs.Reader said since one of the factors is public safety,then cumulative effect on flooding is a factor in public safety. She referred to a point Linda said earlier about the additional water having a much higher significance than if it doesn't cause cascading over. That is where the issue is,whether it is negligible or significant,whether there is no significant difference or very significant....inaudible. Mr.Cohen said it was said that one thimble full is too much and he understands that,but it is only one thimble. Ms.Aisen said she had been concerned that the Board was going beyond the mission given the Board by the Town Board. If the mission,as understood,was perhaps among other things to just look at this rate of runoff and look at the impact upon the wetlands. Even though she was quite concerned and it is in the records of an early meeting,about what is a real flooding problem on Fenimore Road. Now when it is brought up to heighten the issue of the public well being or safety and public health,maybe this thimble full will start the rasrade. Maybe that isn't indeed taking into consideration the cumulative effect,even though SEQRA doesn't require the Board to do that. Mr.Davis said SEQRA doesn't apply to this application anyway. That was an analogy on Mr.Davis'part. Ms. Aisen said the cumulative effect and fixing a problem that was there before this property was purchased and planned for,maybe if the public safety or health is considered in this broader context,it is within Board purview. Ms.Reader said public health and welfare is one of the standard factors. Q Mr.Davis said the statute forces the Board to focus on the proposed activity. Mr.Davis said the Board was given a memo some time ago on another matter explaining the way the statute works,and it might be beneficial to redistribute that memo as a discussion piece. He said one of the questions that the statute leads the Board to ask is to identify the public,economic and social burdens. The statute focuses on the proposed activity. The Board has to assess the application in context with the statute. Ms.Aisen said she is trying to understand the final thinking process. She said Mr. Capicotto said this proposal will not have an unfortunate impact on the wetland that is within the Board mandate protecting the wetlands,which Mr.Capicotto verified. She said this project is O.K.and met all the requirements, which Mr.Capicotto verified. She said there is then the issue of public health and safety,an additional way of looking at wetlands,but there are other things,like flooding on Fenimore Road,something the Board should consider when considering the public health and welfare. Ms.Reader said that would all come into play if the Board thinks that this project is aggravating it. Ms.Aisen said the Board said it is aggravating it one 200th's of an inch,five(5)sheets of paper. Ms.Reader said if she understands it when the hydrology is working,there is no increase on the rate of runoff. Things are slowed down by the project,the detention,whatever. Over the long period,there would be an increase in volume equal to Ms.Aisen said something you couldn't see,except it might be the final piece. The point being made is that 5 ft.,then another 5 ft.,then another 5 ft.and so on. That is the real point. Mr.Papazian said the point is that you have a problem. This piece of property is not going to add to the problem. They have a problem. The question here is does this piece of property add to the problem. The conclusion the Town engineer has drawn is that it does not add to the problem. Ms.Reader referred to page 3 of the letter,paragraph 3,the third dash; "As set forth in the analysis and calculations presented by Harry W.Nichols,Jr.,P.E.,the project will result in no net increase in the peak Planning Board December 13,2000 Page 22 rate of runoff from the site. However,there will be an increase in overall volume of runoff tributary to the She'drake River via the Fenimore Road culvert. This additional volume was estimated by Harry W. Nichols,Jr.,P.E.in a report dated October 21,2000 and is deemed an insignificant change to the overall hydrology of the area." Ms. Reader said Mr. Nichols Associates in Mr. Capicotto's letter, the Town engineer, he said, our engineer said it is his opinion"we support that assertion". Ms.Aisen said she understands,and said Ms.Harrington's problem is insignificant change. Ms.Reader said that Ms.Harrington said she rejects this finding. Ms.Aisen said Ms.Harrington is saying insignificance is enough for her,with which Ms.Harrington agreed. Dr.Mason asked how many homes are in the whole subdivision. Ms.Reader said it looks like 32 subdivision lots. Dr. Mason said before that there was no problem. Each one contributed a negligible amount inaudible. Mr.Papazian said he thinks the conclusion here is that a mistake was made on the whole subdivision that caused the problem. Now there is an applicant before the Board that wants to build a house and question O is does the Board dump or not dump on her,but should we take out the frustrations of the community on this one applicant. After further discussion,Ms.Reader said she agrees with Mr.Papazian. May we consider volume? May we consider"insufficient"impact here-the last house on the Acres-if he hasn't considered it before? Dr.Mason said the laws changed. Ms.Reader said the law hasn't changed. Many of these houses have been built since the Freshwater Wetlands Law has gone into effect. The Board has granted permits for people to build pools,build houses, to do drilling but not blasting at Fenbrook certainly over the last years that she has been a member of the Board and even since Dr.Mason has been a member of this Board. She asked if the Board is imposing a higher standard on this application,and she thinks they are,then they have on anyone else that has come before the Board out of Fenbrook. Yes,there is a problem there. She is not insensitive to that problem. She has to drive on that street as well. She is glad she doesn't live on that street when it's flooded. Dr.Mason said that this piece of property won't have a greater impact than the other. After further discussion,Mr.Davis said he is a little concerned about what the Board is doing with the word insignificant. It is one thing to say,"our engineer said it is insignificant. The evidence in the record suggests that he is wrong and I believe it is significant." It's another thing to say that"this is insignificant, but's still too much." Dr.Mason said it is a little irony that perhaps is not appropriate. Mr.Davis said it has to be decided,based on the evidence. Mr.Carpaneto said that the Town has started to do some work in the project area. In the stream they have taken out some silt,etc. They found there were three(3)pipes in there. Two of them are clogged. The Planning Board December 13,2000 Page 23 Town does intend to try to unflush them. If that doesn't work, they are going to do some kind of replacement. At that point,he said he thinks the Town feels that backup problem may be resolved. Ms.Reader said if they are going to do replacement,is it possible to make bigger openings. Mr.Carpaneto said they also talked about doing a box culvert,a large square pipe,like they did on Weaver Street. He said that is in the works. Ms.Aisen said they haven't been flooded since then. Dr.Mason said it may have made it better for her,but not for the people down the street. Ms.Aisen said the water has to go someplace,that's true. She asked if Fenimore Road is downstream. Dr.Mason said no. Ms.Reader said if this project were approved,one of the requirements recommended by the CZMC,letters back,is with respect to that detention basin on lot 21 there be an easement given to the Town,and that it be in perpetuity on the final plat/Freshwater Wetlands Permit,that whoever owns lot 21 has the obligation to keep that in good repair and a properly working detention basin. If they don't do it,the Town has an easement to go in,do the work and charge it back to the owner of lot 21. Mr.Davis said the Board's authority to impose restrictions or conditions,including dedication of property, is limited constitutionally to conditions that are proportionate to the impact of the action being taken on the property. After further discussion,Mr.Capicotto said there are two(2)basins;one existing for the subdivision which is on lot 20. He said Ms.Reader is talking about the one they are proposing to construct on their property. Ms.Reader said that is correct. It is what controls the water so that there is no net increase in the rate of runoff and also controls so that you don't have more than five(5)pieces of paper volume at worst periods of time. Ms.Reader said there are similar kinds of language clause in the recorded subdivision, giving the Town the right to go in if the applicant doesn't repair or maintain the basin and charge the cost back to the property owner of lot 21. That would be something she would want as a condition in perpetuity. Mr.Davis said in light of the different views expressed this evening,he asked whether it would be useful to review the memo on how this statute works,redistribute it and then perhaps discuss it next time. After polling the Board,Ms.Reader asked Mr.Davis to draft favorable resolution to be reviewed by the Board in advance,in order for the Board to proceed further. On a motion made and seconded,it was unanimously RESOLVED,that the Public Meeting be,and hereby is,declared closed. NEXT MEETING The next meeting of this Board will be held on January 10,2001. ADJOURNMENT On a motion made and seconded,the meeting was unanimously adjourned at 10:55 p.m. Marguerite R Recording Sryy MEETING CANCELLED ON 11/7/00 TO DECEMBER 13.2000 NOTICE OF MEETING The next regular meeting of the Planning Board of the Town of Mamaroneck will be held on Wednesday, NOVEMBER 8, 2000 at 8:15 p.m. in the COURT ROOM, Town Center,740 West Boston Post Road,Mamaroneck,New York AGENDA 1. APPROVAL OF MINUTES 2. PUBLIC HEARING - FRESHWATER WETLANDS AND WATER COURSES PERMIT-Michael Moran-23 Fenbrook Drive-Block 309,Lot 11(adjourned 10/11/00) 71161/1MA-e/ta AKA, Marguerite Roma,Recording Secretary 0