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HomeMy WebLinkAbout1998_04_08 Planning Board Minutes MINUTES OF THE REGULAR MEETING OF THE PLANNING BOARD OF THE TOWN OF MAMARONECK APRIL 8, 1998, IN THE SENIOR CENTER, TOWN CENTER 740 WEST BOSTON POST ROAD MAMARONECK, NEW YORK Present: Marilyn S. Reader, Chairwoman - May W. Aisen • Richard H. Darsky 44 Linda S. Harrington 4:3\ C. Alan Mason 4 4 Edmund Papazian RECEIVED Also Present: Robert S. Davis, Counsel AUG s 1998 Antonio V. Capicotto, Consulting Engineer PATRICIAA,pIgpppp 47 TOWN tint Judy Perrino and Katie Cullen, Public StenographersILK e j Terranova, Kazazes & Associates, Ltd. 40 Eighth Street New Rochelle, New York 10801 • Marguerite Roma, Recording Secretary CALL TO ORDER The meeting was called to order by Chairwoman Marilyn Reader at 8:25 p.m. APPROVAL OF MINUTES Ms. Reader asked if the Board members had reviewed the draft Minutes of the February 11, 1998 and March 11, 1998 meeting and if there were any amendments. After some discussion, on a motion made by Ms. Aisen, seconded by Ms. Harrington,the Minutes for February 11, 1998 meeting were unanimously approved. On a motion made by Dr. Mason, seconded by Mr. Darsky, the amended Minutes for March 11, 1998 meeting were unanimously approved. Ms. Reader stated that due to the fact that additional materials were received this evening on the first matter, DECISION - FRESHWATER WETLANDS AND WATER COURSES PERMIT - GRIFFEN AVENUE/Bobby Ben-Simon, the matter may take more time and that there are two other matters on the calendar. After some discussion, the consensus of the Board is to start the meeting first taking matter number three, matter number four and then matter number 2. Chairwoman Reader read the application as follows: PUBLIC HEARING - SPECIAL PERMIT - George Poline/2 Kitchens - 2423 Boston Post Road - Block 505 Lot 463 On a motion made by Dr. Mason, seconded by Ms. Aisen, 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. Mr. Poline appeared before the Board. Planning Board April 8, 1998 Page 2 Ms. Reader asked if Mr. Poline had any new information for the Board. Mr. Poline said there is no new information to present to the Board. Ms. Reader asked if the hours of operation will be the same as the previous hours of operation, 11:00 a.m. to 10:30 p.m., which Mr. Poline verified. Mr. Reader read a letter received from the CZMC dated April 6, 1998, signed by the chair persons which had no objection to the project. Mr. Davis said the matter was referred to the Westchester County Planning Board, from which there has been no response. Mr. Athey verified the Westchester County Planning Board had been notified, and no comment was received. A discussion ensued regarding the date of the referral, no comment being received and the fact that the Westchester County Planning Board has previously had three applications for the same premises for which no comments have ever been received. Ms. Reader said with that on the record, the Board will proceed with this matter. Mr. Reader asked if there were any further comments from the Board and the public. There being none, on a motion made by Dr. Mason, seconded by Ms. Aisen, it was unanimously RESOLVED, that the Public Hearing be, and hereby is, declared closed. On a motion made by Ms. Harrington, seconded by Ms. Aisen, the following resolution was unanimously APPROVED: WHEREAS, Tanasak Trisophon submitted an application for a Special Use Permit for use of the premises at 2423 Boston Post Road and known on the Tax Assessment Map of the Town of Mamaroneck as Block 505 Lot 463 as a Japanese/Thai take-out restaurant, 2 Kitchens; and WHEREAS, a Public Hearing having been held on April 8, 1998 pursuant to notice; and WHEREAS, the Planning Board having considered the application for a Special Use Permit,the plans and zoning report and environmental analysis submitted by the applicant, comments and responses to questions by the applicant, the reports and comments of the Consulting Engineer to the Town and having heard interested members of the public; RESOLVED, that the Planning Board finds this matter to have no substantial environmental impact, no change from prior use and directs the filing of a Negative Declaration; NOW, THEREFORE, BE IT RESOLVED that this Board makes findings of fact as follows: 1. The proposed use as limited by the conditions set forth herein is in general harmony with the surrounding area and shall not adversely impact upon the adjacent properties due to traffic generated by said use or the access of traffic from said use onto or off of adjoining streets; 2. The operations in connection with the Special Use Permit will be no more objectionable to nearby properties by reason of noise, fumes, vibrations, flashing of lights or other aspects than would be the operations of any other permitted use not requiring a Special Use Permit; Planning Board April 8, 1998 Page 3 3. The proposed Special Use Permit use will be in harmony with the general health, safety and welfare of the surrounding area by the nature of its particular location. It will not adversely impact upon surrounding properties or surrounding property values. BE IT FURTHER RESOLVED, that this Board APPROVES the application of Tanasak Trisophon for a Special Use Permit for a Japanese/Thai take-out restaurant, 2 Kitchens, subject to the following terms and conditions: 1. The hours of operation of the store shall be 11:00 a.m. to 10:30 p.m. daily. 2. Permit shall expire after two (2) years. 3. This Special Use Permit is subject to the termination requirements set forth in Section 240-64 and 240-65 and the use restrictions set forth in Section 240-30-B of the Zoning Code of the Town of Mamaroneck. Chairwoman Reader read the next application as follows: PUBLIC HEARING-SPECIAL PERMIT-TRADER JOE'S EAST,INC. -1262 Boston Post Road- Block 407 Lot 192 On a motion made by Dr. Mason, seconded by Mr. Darsky, 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. Donald S. Mazin of 1415 Boston Post Road, Larchmont, New York, attorney representing Trader Joe's appeared. Mr. Mazin said his client has been before the Board before and before every Board since May. His client has approval for all signs from the Board of Architectural Review, has a permitted use and is before the Planning Board to apply for a special permit as his client would like to have a Grand Opening on April 17, 1998. Mr. Mazin informed the Board that the store is a high quality grocery store that sells unique products and intriguing food at value prices. There are approximately 100 stores throughout the country and it is well-known. Mr. Mazin stated he submitted a large application to the Board with pertinent information and that Bob Langone, Vice President of Trader Joe's is present to answer any questions the Board might have. Mr. Mazin added that Trader Joe's is only a tenant, has no control of area and that the landlord has already obtained site plan approval. Ms. Reader asked if Mr. Mazin had appeared before the Zoning Board. Mr. Mazin said the applicant has not been to the Zoning Board, but has to appear before the Planning Board on this application as it is a special permit use. He also stated there is no change in the footprint. Bob Langone stated he has previously been before the Board. He proceeded to explain that Trader Joe's is a unique grocery store. People like to shop at Trader Joe's because there are always different items, it is a value market and all the items are sold at the best possible price. There are no other stores in the area like Trader Joe's. Ms. Reader asked Mr. Langone what hours of operation he is seeking. Mr. Mazin said the applicant would like the hours of operations to be from 8:00 a.m. to 10:00 p.m., Monday through Sunday. A discussion ensued regarding the hours of operation of the various stores located in that shopping area. Planning Board April 8, 1998 Page 4 Mr. Davis pointed out that in connection with site plan approval the Planning Board adopted a Negative Declaration dated November 12, 1997 and all the required referrals were completed. Ms. Reader said all that information was included in Mr. Mazin's submission documents, and thanked Mr. Davis for putting that on the record. Dr. Mason asked the square footage of the store. Mr. Main said the stores is 7,890 sq. ft. Dr. Mason said that the changes the landlord provided for the driveway makes a big difference and solved the additional traffic concerns that might be generated by this project that the Board had. Ms. Reader asked if there were any other comments from the Board or the public. Jerry Glaser, 19 Rockridge Road, Larchmont, New York appeared before the Board. Mr. Glaser stated that Mr. Mazin mentioned Trader Joe's is the tenant that controls the area and stated they have been able to affect changes in the area; i.e. the driveway, an additional sign and the lighting. The lighting is what Mr. Glaser would like to address. Mr. Glaser stated his residence is located behind Nathan's, up on the ridge of the hill. The lighting has been enhanced in the parking lot of Trader Joe's with additional lights, brighter lights, lights that are tilted in the direction across the Boston Post Road. The density of the lights is brighter than in any other parking lot in any other commercial venture on the Boston Post Road and compared the lighting to the Stop and Shop parking lot which, by comparison, they have no lights. Mr. Glaser proceeded to give examples of nuisances caused by the brightness of the lighting. Mr. Glaser then addressed the number of lights on the poles and asked how high above the street level can lights be placed to illuminate a business enterprize, as the height of the lights in the parking lot is increased by the topography. Mr. Glaser asked what angle can lights assume, stating that Nathan's has lights with caps that direct the lights down. Mr. Glaser asked if the Town has a regulation the does not permit bright lighting to intrude upon a neighbor and asked if the Town wants a business strip to be as garish as those found in many areas of the country, citing various examples. Mr. Glaser said he noticed the change about three or four weeks ago. Mr. Glaser said it is possible that the owner does not realize permission is needed to change the angle of lights or to install additional lights. Mr. Glaser also addressed the hours of operations and suggested the possibility of dimming the lights after twelve, after hours of business, and addressed the angle, intensity and density of the lights. Dr. Mason stated this is not a new concept to the Board, but one of the concerns frequently addressed is directing lighting downward. It is a problem for the Building Department to address and the Planning Board will call it to their attention. Mr. Glaser informed the Board that he contacted the Director of Building, Ron Carpaneto, who said he will look into the matter. Ms. Reader asked counsel about imposing conditions regarding lighting on a special use permit request, and cited various previous approvals; i.e. Nathan's, the car wash toward New Rochelle in the shopping center, Ray Catena Lexus. Ms. Reader said she did not recall the lights being part of the site plan. A discussion ensued regarding same. Mr. Capicotto said one light pole was moved over because of the road widening. Ms. Reader said if there is a change in lighting, who did it and under what terms, and is it something KRT, the management, has a right to do. Mr. Mazin said the only light in question was the light by the driveway. Mr. Davis asked Mr. Mann if he knew of any change in the intensity of lighting. Planning Board April 8, 1998 Page 5 Mr. Mazin said he has no knowledge of that. Dr. Mason asked if Mr. Langone made any demands on the landlord for better lighting. Mr. Langone said not that he recalls. He wants to cooperate with the neighbors and will recommend that the landlord turn down the lighting if it can be done. Ms. Reader said several items must be addressed; i.e. lighting redirected so they do not illuminate beyond the property, lighting shielded so they do not illuminate upward, lighting dimmed after certain hours. Mr. Mazin said the tenant has no control over the landlord's lights. Mr. Capicotto said there is a possibility that the lights were there but the bulbs were out and now replaced. A discussion ensued regarding the replacement and repair of the lighting. Ms. Reader informed Mr. Glaser that the problem is that the landlord is not before the Planning Board, the tenant is before the Planning Board. The tenant has indicated a willingness to speak to the landlord to have the lighting addressed, and Mr. Glaser has spoken to Mr. Carpaneto regarding this matter. Mr. Glaser said Mr. Carpaneto said he will get back to him. Mr. Davis stated he is not sure the code addresses this issue; i.e. pole heights. Ms. Reader said when site plans are considered, it is addressed. Mr. Davis said this issue could have been raised during site plan application, but a special permit application is merely addressing the appropriateness of the use. Mr. Davis said the question has been raised with the Building Inspector, if there is a code issue it will be investigated and a violation will be issued. Mr. Glaser said even if there is no code issue, there is a problem. Ms. Harrington said the most influential tenant is present, who is willing to speak to the landlord and address the issue and feels that is reasonable. Mr. Reader said it is not an issue with the application before the Board this date. Ms. Reader advised Mr. Glaser to speak to Mr. Carpaneto to see if there has been a change at which time he can refer to the original site plan. Mr. Davis referred the Board to the Zoning Code Section 240-45 which states, all lighting shall be so located and shaded in a manner that the light source itself is not visible beyond the boundaries of the lot upon which it is located. Ms. Reader informed Mr. Glaser that Mr. Carpaneto can enforce this issue. Dr. Mason stated in the Coastal Zone Management Commission Local Waterfront Revitalization Program, there is a policy about inward directed lighting and avoiding light pollution. There is a strong legal support in what Mr. Glaser is trying to do, and he should not have a problem in achieving that issue. Bill Eng of Rockridge Road appeared and pointed out that Con Edison trucks had been in the area and said that someone must have made an application to have stronger cables to support the lights. Dr. Mason said Con Edison would not be doing that on private property. Ms. Reader asked if there were any other comments from the Board or the public. Planning Board April 8, 1998 Page 6 Mr. Mazin stated that Trader Joe's would like to have a grand opening on April 17, 1998 and requested the Board's approval. Ms. Reader asked if there were any further comments. There being none, on a motion made by Mr. Darsky, seconded by Mr. Papazian, it was unanimously RESOLVED, that the Public Hearing be, and'hereby is, declared closed. On a motion made by Dr. Mason, seconded by Ms. Harrington, the following resolution was unanimously APPROVED: WHEREAS, Trader Joe's East, Inc. submitted an application for a Special Use Permit for use of the premises at 1262 Boston Post Road and known on the Tax Assessment Map of the Town of Mamaroneck as Block 407 Lot 192 to operate a store for the sale of goods at retail; and WHEREAS, a Public Hearing having been held on April 8, 1998 pursuant to notice; and WHEREAS, the Proposed Action is an unlisted action pursuant to SEQRA and MEQRA, see 6 N.Y.C.R.R. §§617.4 and 617.5;Town of Mamaroneck Code §§92-7(A)and(B), and the Planning Board previously issued a Negative Declaration. WHEREAS, the Planning Board previously granted Site Plan approval; WHEREAS, the Planning Board having considered the application for a Special Use Permit, the plans and zoning report and environmental analysis submitted by the applicant,comments and responses to questions by the applicant, the reports and comments of the Consulting Engineer to the Town and having heard interested members of the public; NOW, THEREFORE, BE IT RESOLVED that this Board makes findings of fact as follows: 1. The proposed use as limited by the conditions set forth herein is in general harmony with the surrounding area and shall not adversely impact upon the adjacent properties due to traffic generated by said use or the access of traffic from said use onto or off of adjoining streets. 2. The operations in connection with the Special Use Permit will be no more objectionable to nearby properties by reason of noise, fumes, vibrations, flashing of lights or other aspects than would be the operations of any other permitted use not requiring a Special Use Permit. 3. The proposed Special Use Permit use will be in harmony with the general health, safety and welfare of the surrounding area by the nature of its particular location. It will not adversely impact upon surrounding properties or surrounding property values. BE IT FURTHER RESOLVED, that this Board APPROVES the application of Trader Joe's East, Inc. for a Special Use Permit for a high quality grocery store subject to the following terms and conditions: 1. The hours of operation will be 8:00 a.m. to 10:00 p.m. daily. 2. Permit shall expire after two (2) years. 3. This Special Use Permit is subject to the termination requirements set forth in Section 240-64 and 240-65 and the use restrictions set forth in Section 240-30 of the Zoning Code of the Town of Mamaroneck. Planning Board April 8, 1998 Page 7 Ms. Reader wished the applicant good luck and a happy grand opening. Chairwoman Reader read application number 1, as follows: DECISION - FRESHWATER WETLANDS AND WATER COURSES PERMIT - GRIFFEN AVENUE/Bobby Ben-Simon - Block 305 Lot 903.2 Ms. Reader stated for the record the Board received, prior to this evening, a letter dated March 21, 1998 with attachments signed by Jane and Eugene Kaplan and Barbara Berdon from 7 Split Tree Road and 5 Split Tree Road, respectively, which asked for a clarification of why in an earlier letter from Malcolm Pimie it was indicated that the application was within the 100-year flood plain and a later letter from Malcolm Pirnie indicated it was not in the 100-year flood plain and asked Mr. Capicotto to address that issue. Mr. Capicotto said as previously mentioned and explained to Mr. Kaplan when the application first came forward, the elevations on the drawing were compared to the 100-year flood plain elevation as presented by the Federal Map. The 100-year flood elevation in that area was 102. The elevation shown on the drawings were all below that elevation and the assumption was made that it was within the flood plain and asked that it be checked into. It was reviewed and found that the survey presented was based on arbitrary survey datum and not on the USGS flood maps and explained the process used in the determination. When the Federal Map is used with the correct elevations tied into the USGA datum, the property is well above 102 and more around 150. Ms. Reader asked if any of the property is in the flood plain. Mr. Capicotto said none of the property is in the flood plain. Mr. Capicotto said that Mr. Senor faxed him a copy of the map, which helped him understand why the area was not in the flood plain. A discussion ensued regarding calculations of flood plains and the use of arbitrary numbers. Robert Funicello said he discovered in reviewing this particular matter that the Town of Mamaroneck has elevation maps based upon aerial photographs of the entire Town of Mamaroneck and any applicant in the Town of Mamaroneck that wants to know the elevation of its property can get a copy of same. It is just an observation and not directly related to this issue. Ms. Reader stated the Town has USGS maps which are the flood-plain maps which were not initially used by Mr. Senor. • Mr. Davis said that the carelessness was actually a detriment to the client. Ms. Reader asked if Board members had any other questions. Dr. Mason said there was the question of the strength of the bridge. The Board has received communication regarding various vehicle weights from James Athey, Environmental Coordinator. Ms. Reader said that the communication received references vehicle weights using the bridge, and asked if the bridge is strong enough. Mr. Capicotto said the bridge design has not yet been submitted,which will be forthcoming as part of the building permit application. Ms. Reader asked Mr. Davis if that is one of the elements of the Freshwater Wetlands Permit. Mr. Davis said a structural issue is a Building Department issue, as the Building Department has to be satisfied with the structural integrity of the bridge at the time the permit is issued for construction. The Board can condition satisfying the Building Department standards to carry that kind of load. Planning Board April 8, 1998 Page 8 Ms. Reader stated under the new plans submitted this date there is a row of rhododendron that seem to be additional rhododendron and asked if they are additional to what was previously indicated, as natural vegetation along the sides was originally proposed. Eliot Senor said they are new plantings, twelve to fifteen 6 ft. high rhododendron. Ms. Reader asked if the new plantings are on the revised.plans, S-2 of 2, dated April 6, 1998, which Mr. Senor verified. The first page is not changed. Ms. Aisen asked counsel in reference to the last paragraph on page 1 in the letter from Malcolm Pirnie, dated March 24, 1998, does the Board have to consider it a hardship if the Board does not permit the applicant to build a pool. Mr. Davis said no, the Board has to make a decision about the construction of the pool in accordance with the standards for a wetland permit. Ms. Aisen said it may be an issue in addressing the letter received from the individuals at Split Tree Road and asked if the pool is included in the quantity of runoff. Mr. Capicotto said yes, everything proposed is included. Ms. Aisen asked if the Board will address the letter received from the individuals on Split Tree Road point by point. Ms. Reader stated most of it was addressed at the last meeting. Eugene Kaplan of 7 Split Tree Road, Scarsdale, said most of it was addressed at the last meeting but not answered. Ms. Reader stated some of it is a question of conclusion. Mr. Kaplan said there are certain conditions that were agreed to by Mr. Senor at the last meeting. The new map which was just filed two days ago only shows the extra rhododendron in the back. Mr. Senor also agreed that there would be a planted berm to be raised between the pool deck and the rear of the property and a siltation fence along the rear of property during the construction period. Ms. Reader stated a siltation fence is required by the Building Department. Mr. Capicotto said the berm is shown on the new drawing in the ground contours and expanded on that issue. Ms. Reader stated the height of the ground is being raised in that location higher than it originally was in the plans, and it will come back down to ground level. Ms. Senor said rhododendron will be planted on top of the berm. Ms. Aisen asked if the height of the berm is important. Mr. Senor said the height of the berm is shown to be approximately 2 ft. to 4 ft. high depending on location. Mr. Kaplan said silt fences and hay bales are shown in various locations, but he does not see any in the back of the property. Mr. Senor said the plan is labeled silt fence along the property line and is written with an arrow. Planning Board April 8, 1998 Page 9 Ms. Reader said whenever there is construction, the rules of the Building Department regarding erosion control requires hay bales and silt fencing to be in place. Ms. Reader asked if Mr. Kaplan had any other concerns regarding the letter from the individuals on Split Tree Road. Mr. Kaplan asked how a pool will be built over a water.table that is two (2) ft. below the surface. Mr. Capicotto referred to the ground contours and stated that area will be filled in with approximately six (6) ft. of clean fill. Mr. Senor said the high end will be four(4)ft.and the low end will be six(6)ft. The pool is never empty and there will not be a problem. Mr. Kaplan said there is water from the pool deck which is substantial. Ms. Reader asked what the deck is composed of. Frederic Zonsius, the architect for the project, said the deck is composed of porous pavers which are sloped toward the pool and all runoff goes into the pool. Ms. Reader said there is also a catch basin on a portion of the deck that doesn't slant to the pool. Mr. Senor said there is still zero net runoff, even when there is a heavy rainfall. The berm prevents any water running off the pool deck from getting onto Mr. Kaplan's property. Mr. Zonsius said the berm is not required for zero runoff, but Mr. Kaplan requested it and the applicant spent the money to accommodate Mr. Kaplan's concerns. Ms. Reader said in understanding what Mr. Zonsius is saying, without the berm there is zero net runoff, which Mr. Zonsius and Mr. Capicotto confirmed. Ms. Reader stated it is an additional security. Mr. Kaplan asked if in the original calculation the land was to be built up where the proposed pool was set to be. Mr. Senor said part of the original plan showed the pool in the raised elevation and the layout has not been changed. Mr. Kaplan also raised concerns about the destroyed trees and the fact that eighteen destroyed trees are to be replaced with fifteen or twelve trees. Mr. Kaplan read and does not understand the tree permit, nor the absorption capacity of the replacements specified. Ms. Reader stated this was addressed at the last meeting. The Board is addressing zero net runoff. Mr. Papazian said the Tree Commission was supposed to meet and it did. Mr. Zonsius said a tree application was submitted, letters were sent out with a ten day review period, at which time the Tree Commission makes recommendations regarding trees to be removed and replacement trees. Ms. Reader asked if Mr. Zonsius will comply with conditions set by the Tree Commission,with which Mr. Zonsius agreed. A discussion ensued regarding the number of trees to be removed and replaced. Planning Board April 8, 1998 Page 10 Mr. Athey stated the reason more trees are recommended on site is the fact that there is limited space and a County easement. The recommendations are as follows: fifteen trees with a$2,500 bond or twelve trees with a $750.00 bond and $750.00 to the Tree Fund, an option given to property owners when space is limited. It is not an uncommon request. A discussion ensued regarding the runoff, water absorption and capacity of water absorption that takes place as part of the wetlands process regarding the trees.being removed and being replaced. Ms. Reader stated it is not an issue of tree for tree. The issue is zero net runoff. The project will end up as a different piece of property than currently exists. The formula being looked at has a lot of variables to it; i.e. absorption, dispersion, compensating for the change on the property because it is not all grass and trees anymore. One of the major changes is catch basins and the various dispersion structures. When a tree is removed, generally it is not required by the Board that equal trees be replaced. Each project must be reviewed in itself and the whole formula reviewed. It has been indicated to the Board that twelve trees, plus an ornamental tree, will be replaced, and perhaps more trees if the Tree Commission indicates same. It can be made a condition of approval. A discussion ensued regarding the removal of a 24 in. Tulip tree proposed to be removed, to the left of the proposed pool deck. Jane Kaplan of 7 Split Tree Road appeared and addressed the Board. Ms. Kaplan asked in computing the zero runoff figure if that is greatly dependent on the slow release of water from the dry well, which Mr. Capicotto verified. Mrs. Kaplan said what Mr. Capicotto is saying is that it is the combination of the replacement trees and the dry wells. Mr. Capicotto said it is only the dry wells, the trees are not looked at. From late fall until the end of winter, trees are not drawing any water. Mrs. Kaplan asked if dry wells fill up, and how long can an individual depend on a dry well to fulfill the zero runoff assumption. Mr. Capicotto explained the process involved in the workings of a dry well and said the size of the dry wells is eight ft. in diameter by five ft. deep. Mr. Kaplan said the dry wells have to be cleaned periodically. Robert Funicello, attorney, asked to address the Board. With respect to this issuer Westchester County's Non-point Pollution Committee adopted a program which has been submitted and adopted by the Town of Mamaroneck for Watershed Advisory Committee Area Three. In that report the general life of an infiltration device of this kind is five years, based upon DEC standard information. Dr. Mason asked if Mr. Funicello is talking about direct inflow to the infiltration device or inflow after it has been directed to a settling device such as a catch basin. Mr. Funicello said he was referring to the report. Dr. Mason said Mr. Funicello is not answering the question. Mr. Funicello said he is not sure. Mr. Davis interrupted this conversation by stating the meeting has moved from a discussion of questions based on the record prior to the close of the hearing. It seems that Mr. Funicello is moving in the direction of bringing to the Board's attention new information which was not on the record. The Board should decide the direction it is moving in as the hearing was closed at the previous meeting and a Negative • Planning Board April 8, 1998 Page 11 Declaration was adopted. Mr. Davis was not aware new material was going to be submitted this evening, and has not reviewed same. There are problems involved in a Board making a decision based on information received after the close of a hearing and the record. Ms. Reader agreed with Mr. Davis that new and different information is being submitted this evening. Mr. Funicello said plans and letters were submitted following the close of the hearing. Ms. Reader said that was consistent with what had been discussed at the last meeting. Ms. Reader stated the new plan submitted by the applicant, Mr. Kaplan's letter and the discussion taking place about them is for the Board to confirm that what was agreed upon at the last meeting is what is being done by the applicant. Mr. Kaplan framed the request last time at a public hearing. Mr. Senor and Mr. Ben-Simon agreed to satisfy Mr. Kaplan's request and members of the Board had certain concerns that needed to be addressed. Mr. Funicello asked if the Board will consider reopening the public hearing, as Mr. Funicello has significant information that is at odds with the fundamental data the Board is relying upon. Ms. Reader stated that procedurally the Board had no notice a public hearing would be held this evening. Mr. Funicello said on that issue he does not see how the applicant is prejudiced. Ms. Reader stated the Board would like to stay with the issues that are being discussed to clarify the answers the Board needed and to assure that the applicant has done what he agreed to do to meet Mr. Kaplan's concerns. Ms. Reader asked if there were any other questions. Dr. Mason said he was reviewing the Minutes to see that the Board covered the material that has been presented and it looks as though it has been covered. Mr. Zonsius said that Ms. Aisen mentioned the trees. Trees are being added along the Sheldrake Trail. The trees being removed are upland and trees are being planted where they are most needed, along the bank of the creek. The Willow trees being added will have a greater affect. Ms. Aisen said she stands corrected by the Board, as she has been a little over zealous about trees as there is zero net runoff. Ronald Scher of 124 Hickory Grove Drive, the attorney for Mr. Ben-Simon, appeared and stated it is his understanding that any plans filed subsequent to the last hearing on March 11, 1998 were in compliance and conformance with the recommendations of the committee with respect to Mr. Kaplan's request and his concerns. They dealt specifically with that limited issue to comply with the recommendations of the committee. Mr. Scher will address any other concerns regarding the letter submitted this date, which he feels is improper to be heard this date. Ms. Reader asked the Board's consensus with respect to the new material submitted this evening. Dr. Mason and Ms. Harrington said they did not want to get into the new material. Ms. Reader feels the one issue not addressed, possibly an issue between the parties, is the restrictive covenant. Mr. Davis interrupted stating the hearing that was conducted on this matter was duly noticed. No request was made during that hearing to keep the matter open so additional information could be submitted. If the Board should choose to make a decision, the decision would be judged based on the record before the Board at the time of the hearing. Without reopening the hearing, which would require renoticing the hearing, it would be improper to receive and act on new evidence. Mr. Davis also explained the Board's obligation with respect to rescission of negative declarations and referred to and read Section 617.7(f)of Part 617 of the New York Code of Rules and Regulations entitled Rescission of Negative Declaration. Planning Board April 8, 1998 Page 12 Mr. Davis then commented on the restrictive covenant, stating it is a matter of private concern between the parties. Mr. Davis said the Board has before it the deed to Mr. Funicello's client but not the deed to Mr. Ben-Simon or whoever is the current owner of the other parcel which would provide information with respect to how that property was purchased and what it is subject to. Mr. Scher said that can be submitted, but with respect to the restrictive covenant it is a matter of civil issues between the parties. Mr. Scher said he has been'in contact with Mr. Weisfeld's previous attorney as recently as last week with respect to this issue and trying to work out some understanding concerning the negative covenant. Mr. Scher spoke with Mr. Foreman and was surprised to hear this date from Mr. Funicello and receive a letter as he was attempting to work out the reduction of the garage by three ft. in order to comply with whatever restrictive covenant there is to avoid further civil litigation. Ms. Reader said if the garage is reduced by three feet, the applicant will be at the eighteen foot line and that will moot the restrictive covenant, which Mr. Scher verified. Mr. Davis asked if Mr. Scher is conceding the covenant exists and is enforceable. Mr. Scher said no, but he has a proposed letter agreement to Mr. Weisfeld's attorney with respect to this issue. He does not feel that is an issue for the Town. Mr. Funicello asked if he can address the SEQRA matter and present an application for this matter to be reheard based on the information he is supplying this evening. Ms. Aisen objects to being presented with a serious document when arriving for the meeting. She cannot address the issue. It is difficult to evaluate whatever appeals are made because she has not read what Mr. Funicello submitted this evening. The Board has to consider the fact that other Board members as well have not read this evening's submission and it is difficult to assess the seriousness of the matter. Ms. Reader stated the Board members received this information this evening, and asked if Mr. Capicotto also received this information this evening. Mr. Capicotto verified that the information was received this evening and can only speak in a limited fashion on the ecological report, as he is not a wetlands expert and must have the experts at Malcolm Pimie review same. Ms. Reader stated Mr. Capicotto provided the Board with a letter in terms of compatibility and asked if Mr. Capicotto had relied on the wetlands experts at Malcolm Pimie in forming that opinion, which Mr. Capicotto verified. Ms. Reader asked the Board members if they wanted to hear from Mr. Funicello, as the public hearing has been closed and this is new information. Mr. Davis stated he wants to make it clear if the Board receives the materials, it is not a part of the record on which the Board will make a decision. Ms. Reader asked Mr. Davis if new information was received would it affect the Negative Declaration. Mr. Davis said the Board has to make a decision based on what is on the public hearing record. A decision on whether to re-open should be based on the adequacy of that record with consideration given to whether there was sufficient time to present the Board with information at the hearing and to the fact that someone was coming in at the last minute. Mr. Davis said if the Board has concerns about certain issues, the Board would be permitted to vote to renotice the public hearing and reopen the matter. There is no public hearing notice this evening. The applicant and other members of the interested public thought the public hearing was closed. Planning Board April 8, 1998 Page 13 Mr. Darsky said the Board should consider it and have the public hearing reopened or don't consider it. Before doing so he suggests that the applicant be heard with respect to what prejudice there would be. Mr. Davis suggested allowing Mr. Funicello a defined period to make the application, so the applicant's attorney can respond to something precise rather than anticipated. Mr. Darsky asked what prejudice would be realized by'the applicant. Dr. Mason stated the applicant made that clear at the last meeting. Mr. Scher said there is a one-time four(4) month consecutive easement for the adjoining property to use Mr. Weisfeld's property for construction which closes June 15th through a window of August. If approval is received construction can commence at this time and the bridge construction can be finished on the area designed for the temporary construction easement. The applicant now has only a two and one-half month's time left for the applicant to notice them, utilize the easement for construction purposes and finish by June 15, 1998. The applicant can do that within the time frame utilizing the engineer and the contractors. If this is delayed any further, the applicant will not be able to complete the construction before the deadline of June 15, 1998 and will loose the entire summer construction period and not be able to start the construction on the bridge until after the summer. The building will probably not be able to be completed until next year, 1999. It is solely for the purpose of doing the construction for the bridge. There are other easements to put in temporary and permanent utilities for the construction, but this is the critical aspect which will cause undue hardship and unnecessary financial loss. Mr. Darsky asked if this could be contractually expanded if the parties so desire. Mr. Scher said an attempt was made to contractually increase the applicant's time to use the easement with Mr. Weisfeld's former or existing attorney when discussing the negative covenant but Mr. Weisfeld did not want to do that. Mr. Scher has been advised Mr. Weisfeld will not negotiate whatsoever. The applicant has a limited time to do the construction. It is a formalized recorded easement set forth in deeds between the predecessors. Ms. Reader does not recall a condition indicating a limited period of time for construction during site plan approval. When site plan was done on the Lourie project, it was Gary Trachtman's observation that a construction easement was needed until the new road was built. It was originally planned to have a shared driveway that would branch off to the two properties. Mr. Weisfeld did not want to share the driveway, so a change was made. The plans then required a new road with a bridge. Bobby Ben-Simon appeared and stated Mr. Weisfeld purchased the property after the subdivision. Ms. Reader said maybe it was Mr. Ben-Simon that did not want the shared driveway. A discussion ensued regarding the subdivision, the construction easement and the final plat. Mr. Scher said the easement is attached to the papers which specifically sets forth the four month easement shall not encompass the period of June 15th through August 31st. Ms. Reader asked if that was a modification when Mr. Weisfeld purchased the property. Mr. Scher said it was not a modification when Mr. Weisfeld purchased the property,but was the easement agreement between Mr. Weisfeld and Mrs. Lourie. Mr. Davis suggested the Board make a decision whether it is satisfied with the record before the Board and is prepared to go forward on reliance of the Negative Declaration adopted at the last meeting or whether it is not satisfied with that record and allow itself to reopen the public hearing to allow itself time to reconsider that issue. The Board can consider whether matters brought to its attention compels the Board to do that, but should consider the timing. If the Board is convinced it should rescind the Negative Planning Board April 8, 1998 Page 14 Declaration and reopen the hearing to explore it, Mr. Davis is not sure if hardship on the applicant is sufficient reason not to do it. On the other hand, if the Board is not convinced of that, the Board has to move forward. Mr. Darsky feels he has to weigh the hardship issue. Robert Funicello, attorney representing Barry Weisfeld.who lives adjacent to the subject property with offices at 100 Mamaroneck Avenue, Mamaroneck, New York appeared. Mr. Funicello explained why the material was submitted this evening. The applicant has whatever time it takes to prepare an application and presumably did that. Mr. Funicello's client gets ten(10)days notice. Within that ten(10)day period attended a public hearing and made a presentation as Mr. Funicello was unable to be contacted. Mr. Funicello was contacted shortly after the last public hearing. Made inquiries about the status of the matter, minutes were unavailable and received no official word as to what had happened at the meeting. Mr. Weisfeld did inform Mr. Funicello that the public hearing had been closed. Mr. Funicello made an inquiry of one Board member, Dr. Mason, and was told the public hearing was closed and matters were to be considered. Dr. Mason said consideration is what is being done this evening and stated Mr. Funicello should not imply that consideration was a consideration of this additional material which Dr. Mason feels was entirely inappropriate. Dr. Mason stated he brought the call from Mr. Funicello to the attention of counsel the same day. Mr. Funicello said he would have called Mr. Davis if he knew he was involved. Mr. Funicello apologized to the Board if something was done that is inappropriate. Ms. Reader suggested procedurally, Mr. Funicello should have called the Building Department and spoken to the secretary to the Boards who would have directed him to counsel. Mr. Funicello said copies of the file were obtained, a consultant, Dru Associates, was retained. The site was inspected the end of March or the beginning of April. Reports were prepared, the law was reviewed based on that report and the letter written which was delivered this evening. Mr. Funicello said he understands it is difficult to review information submitted at the last minute, but feels there is material information that was submitted that is significantly wrong. Mr. Darsky interrupted stating the Board has not yet decided whether or not the application can be made. and he should stop immediately. After some discussion, Mr. Davis said there is no set of procedures'that instructs the Board on how to proceed at this point. An application means a request and an explanation of the request for the Board to take certain actions which it may or may not be obligated to do. The Board is not obligated to hear that application. Mr. Darsky said nor is the Board obligated to hear the recursive of the application. Before the Board goes any further, Mr. Darsky would like to Board to agree if they want the application to be made. Ms. Aisen said she understands the Board can call for another public hearing if the Board determines there is new substantive information that should be considered. She cannot determine if what has been submitted this evening is substantive until it is read and if she would vote for or against an additional hearing of this application. Mr. Davis said he feels the entire Board is subject to the same disability. Ms. Harrington asked when Mr. Funicello approached Mr. Ben-Simon's attorney to start discussing the easement, the expansion of the easement and the time limit. • Planning Board April 8, 1998 Page 15 Mr. Scher said initially counsel was contacted the second week of March, the first ten days. Mr. Scher said Mr. Foreman, was also contacted within the week, possibly March 10th, 12th or the 14th. Mr. Scher attempted to set forth their understanding in a letter which was sent March 24th. Every day he has called Mr. Foreman and is told there has no conclusion as Mr. Weisfeld is not considering anything. Ms. Harrington said even if the materials submitted this evening were received one week ago, it would have given the Board time to read it and feels there is no'reason it should have been submitted this evening. It places an unfair burden on the Board to be expected to read the submission and come to a decision or decide to hold something over or reopen the public hearing. Mr. Scher feels it is a delaying tactic, as Mr. Funicello clearly indicates he was involved at the time of the original hearing. A heated discussion ensued. Mr. Darsky said he would like to hear what Mr. Funicello has to say, if and only if it is limited to what is in the letter and nothing further. However, that is only one member of the Board's opinion. Mr. Ben-Simon said in February he sent a registered letter to Mr. Weisfeld which he never responded to. There was plenty of time to discuss these issues. Mr. Ben-Simon said plans were submitted late at the last meeting, and it was rejected to be dealt with in the appropriate manner. That is why he is before the Board this evening. Mr. Zonsius said the process was started December 15, 1997, and letters were sent out in regard to the Erosion Control Wetlands permit, initial review January 21, 1998, then February 21 and March 28. Ms. Reader asked Mr. Zonsius for clarification stating the Kaplan's made reference also to the EAF which omitted#a-19, whether the site was in a critical environmental area. Mr. Senor said a letter was received from the State stating it was in a Class C wetlands. Mr. Scher said what Mr. Senor was referring to was a Department of Army letter, dated March 26th, and DEC letter of January 30 which indicates it is in a Class C wetlands under the Environmental Conservation Law. Ms. Reader asked about the critical environment area. Mr. Zonsius said he is confused. Malcolm Pirnie is the firm that'was hired by the Town, who has reviewed all the application work. He does not understand why they wrote the letter that was written and why issues were not raised when the letter was written. Mr. Zonsius is shocked this is coming at this point in time. Mr.Davis asked Mr. Zonsius if he signed the environmental assessment,which Mr. Zonsius verified. Mr. Davis asked if the question that asked whether the site is in a critical environmental area was left blank, which Mr. Zonsius said yes because he did not know. Mr. Davis asked if Mr. Zonsius has had occasion to find out. Mr. Zonsius said he relied on Malcolm Pirnie to advise them. The EAF form is not to be filled out by the applicant. He believes it is to be filled out by government body, Malcolm Pirnie. Mr.Davis said the question Mr. Zonsius is referring to is in part I of the Environmental Assessment Form which is the responsibility of the applicant not the responsibility of the lead agent. Mr. Capicotto said it is run by the wetlands experts at Malcolm Pirnie. A discussion ensued regarding the significance under SEQRA. • Planning Board April 8, 1998 Page 16 Mr. Davis stated as long as the Board is satisfied that all the environmental issues have been addressed and determined there is no likelihood of significant impact, failure to check that box is not material. Dr. Mason said he would like to move to approve the application and move on. Mr. Reader said she would like to give Mr. Funicello the opportunity to speak, and narrow down the material issues in his letter. Ms. Reader said if her memory is correct about the change in the law, then one of the paragraphs becomes immaterial. Mr. Funicello stated the reason that was included in his letter is because the Town of Mamaroneck has recognized the importance of this particular drainage system. He stated that Dr. Mason has been one of the most important individuals in the Town to recognize the importance of this drainage system, the Sheldrake designated as the Leatherstocking/Sheldrake area. The reason it is important is because flooding occurs in the Sheldrake. If wetlands or areas that serve as water absorption or reservoir areas in that drainage are filled,something is being done that is not good for the Town of Mamaroneck. It is important to know that critical environmental area exists. This is a Class I Wetlands in the Town of Mamaroneck, and designated in the Wetlands Ordinance. Mr. Funicello does not know if this specific issue and the standard of review necessary to grant a permit for a Class I Wetlands has been explicitly addressed. Mr. Davis asked Mr. Funicello to focus on why this is a Class I Wetlands. Mr. Funicello said he believes it is a Class I Wetlands because it is stated that all mapped wetlands are Class I Wetlands. Maybe the entire property is not a Class I Wetlands, but since this application does not have a map properly prepared showing the wetland mapped by the proper procedure, the Board does not know where the wetland is. On the map the entire lot is designated as a Class I Wetlands and the house is being put on a Class I Wetlands. A discussion ensued regarding the reference being made to the wetlands map. Mr. Funicello said he is referring to the Wetlands Ordinance. Any mapped wetland is a Class I wetland under the Ordinance. That was never done in this instance, so it is not known where the wetland is on this property and it is not limited to the Sheldrake River bed itself. Mr. Davis asked if Mr. Funicello is referring to the first paragraph of the Dru Associates letter,which was verified. Mr. Papazian stated he has a problem with the argument of Mr. Weisfeld's attorney. This is not a public hearing to entertain this type of material. The Board should make a determination whether he should be allowed to speak on this and if he should start speaking on it the applicant is going to have to reply to it. The applicant has not had time to review the material,just as the Board has not had time to review the material. A determination has to be made to approve the application as it is submitted or not approve the application. Ms. Reader asked the Board's feelings on whether or not they want to hear any more information. Ms. Harrington said she did not want to hear any more information. Dr. Mason stated he is satisfied with the material presented at the last meeting and if given the opportunity would move to approve the permit application. Ms. Aisen said she has not had time to determine whether there is substance in Mr.Funicello's application. Mr. Papazian would like to hear one way or another approval of the permit application the way it is submitted. Mr. Papazian does not wish to obtain any more material. Planning Board April 8, 1998 Page 17 Mr. Darsky would like to hear more material. If there wasn't the June 15, 1998 window,maybe the other Board members would like to hear more as well. A short recess should be taken to open the window a little wider, it might possibly change the vote. Mr. Ben-Simon said he has spent quite a bit of money because Mr. Weisfeld refused to discuss the issue with him, face to face, in January. Mr. Scher said the applicant is trying to build a house to sell to someone who will live there. Any further delays will cause harm and financial hardship. Ms.Reader asked Mr. Capicotto if there is compatibility in the New York Rules and Regulations and asked if the standards used are different standards for wetlands. Mr. Capicotto said no, he went by the Town Code. Mr. Davis said the question of standard is a complicated question and expanded on that issue. Ms. Reader said if she understands Mr. Funicello, he is saying the whole property is wetlands. Mr. Funicello said he has to say it is a wetlands because there is no map further defining it. Mr. Davis said there is more evidence on the record than that map. Mr. Davis said Mr. Capicotto applied the compatibility standard and Mr. Funicello is saying that that is inadequate. Mr. Funicello is saying that there is a balancing process in addition because of how this is construed a wetlands and Mr. Funicello believes it has not been applied and could not be met. Ms. Reader asked if the standard Mr. Capicotto applied is a viable standard. Mr. Davis said based on the records the Board has before it in the public hearing, the standard applied was correct. Mr. Davis said he has not had the opportunity to absorb the proposed new information. Ms. Reader said based upon that, the Board should work with what it has, as the additional information is not appropriate at this time. Mr. Scher said the infiltration system does not work. Mr. Funicello said it is improper for Mr. Scher to say that. A heated discussion ensued, with Mr. Davis instructing both Mr. Scher and Mr. Funicello to stop the bickering. Ms. Reader stated Malcolm Pirnie has reviewed the proposed application and applied the standards needed for this project, which Mr. Capicotto verified. Mr. Senor said tests were performed as stated on the drawing. Also there was discussion about the ground water and why the dry well was placed in the area it was placed, because high ground water was encountered in other areas. Ms. Reader stated that is why the paving stones were placed on the pool deck. Ms. Senor said the high ground water was addressed at the last meeting. Ms. Reader stated there are two individuals that would like to hear more and needed more time, Mr. Darsky and Ms. Aisen. Planning Board April 8, 1998 Page 18 Ms. Aisen said she does not feel able to address this issue. If there is something substantive, the Board should address it regardless of the time and inconvenience to the original applicant. If there is nothing substantive, Ms. Aisen would like the Board to move forward and allow the house to be built. Mr. Scher stated the Town's consulting engineer confirms the submitted plan is proper. Ms. Reader said with what Mr. Capicotto has indicated, she feels the use of the storm drainage system, the various dispersion systems is appropriate, the project is not inconsistent with the type of dispersion system the Board has permitted throughout the Town, citing various sites, and is having a difficult time being persuaded that this particular soil on this piece of property is different from the soil on these other parcels that are a part of the same flood plain. Ms. Reader stated she, along with the other three members of the Board, is ready to move forward with what has already been heard. Ms. Reader said the issue about the bridge in Mr. Funicello's letter is an issue for the Building Department and not the Planning Board. After some discussion amongst Board members about taking a ten minute break to review this evening's submission, Mr. Davis said there is a balance between what is a public hearing and what is a request to open a public hearing. It would be improper for the Board to listen to Mr. Funicello read his letter and turn down the application this evening based on the content of the material. It would not be improper this evening for the Board to consider whether it was necessary to open a public hearing. Mr. Davis' concern is because of the last minute submission of this material it is not clear, and the Board has to be very careful. Mr. Davis is not sure how reading it quickly and listening to a short presentation advances everybody. It may require judgment from the consulting engineer,judgment from Mr. Davis on questions that were not presented this evening that Mr. Davis has not had a chance to think about. Ms. Reader said the Board will rely upon what is in the record, to proceed and entertain the question whether to approve the Freshwater Wetlands Permit. Mr. Davis said he believes the consulting engineer has reaffirmed his determination that the records support the findings required to move in that direction. Ms. Reader said it is her understanding that Mr. Capicotto has considered the factors that were required to be considered given the type of property it is and where it is, has reviewed both environmentally and based upon the reliance of wetlands experts within Malcolm Pirnie Ms. Reader is prepared to go ahead. Ms. Reader asked Mr. Kaplan if all the things in his letter have been addressed. Mr. Kaplan said everything has been addressed except the blanks in the environmental assessment form, even though he does not know how material those items are. Ms. Aisen said the attorney stated those items were not material, which Mr. Davis responded to. Mr. Kaplan said the disposal of waste was not answered. Ms. Reader said that waste was addressed at the last meeting, but asked Mr. Senor to again address it. Mr. Senor said the solid waste gets trucked to White Plains, gets compacted and sent off to Peekskill or Buchanan. Sewage from the drains, etc. go into the County Sewer manhole and processed in the Mamaroneck Sewage Treatment plant. A discussion ensued regarding the answer noted in the EAF, C16, with Ms. Reader stating that the construction waste will be carted to Peekskill. Ms. Reader asked Mr. Kaplan if there was anything else. Mr. Kaplan stated it was said there will be no blasting, and he had nothing else to say. Planning Board April 8, 1998 Page 19 Ms. Reader asked if there were any other questions from the Board. On a motion made by Dr. Mason, seconded by Mr. Papazian, the following resolution was APPROVED, 5-1, Mr. Darsky abstained: WHEREAS, Bobby Ben-Simon has applied for a permit pursuant to Mamaroneck Town Code Chapter 114 for the premises located at Lot No. 903.2 Griffen Avenue and known on the Tax Assessment Map of the Town of Mamaroneck as Block 305 Lot 903.2; and WHEREAS, this Planning Board has previously determined that the proposed action is an unlisted action for purposes of SEQRA and, at the meeting held on March 11, 1998, adopted a negative declaration; and WHEREAS, the Consulting Engineer to the Town has submitted written comments and recommendations to the Planning Board regarding this application; and WHEREAS, this Planning Board has determined, pursuant to Mamaroneck Town Code Chapter 114,that the activity proposed is of a minor nature and is compatible pursuant to 6 NYCRR §665.7; and WHEREAS, a Public Hearing pursuant to Mamaroneck Town Code Chapter 114 having been held on March 11, 1998; NOW, THEREFORE, BE IT RESOLVED, that this Board makes finds as follows: 1. The activity proposed is of such a minor nature as not to effect or endanger the balance of systems in a controlled area. In particular, the Board fords that project construction will not take place in the flood plain, bridge abutments are not proposed within the limits of the stream banks, and the proposed construction will take place at the greatest feasible distance from the stream. In addition, the proposed storm water collection and dry well system will result in there being no net increase in runoff from the site, and the applicant has consented to certain requests made by the Board, including the use of paving stones set in sand bedding in appropriate portions of the driveway area, the reduction in length and pitch of the driveway, and the minimization of tree removal. The Board also notes that tree replacement along the brook will assist in replacing the transpiration capacity of trees being removed. 2. The proposed activity will be compatible with the preservation, protection and conservation of the wetland and its benefits, because (A) the proposed activity will have only a minor impact, for the reasons described above, (B) it is the only practical alternative for the site, and(C)it is compatible with the economic and social needs of the community and will not impose an economic or social burden on the community. In support of this finding, the Board notes that the applicant has satisfactorily minimized the creation of impervious surface and that, as confirmed by the Town's Consulting Engineer, there will be no net increase in storm water runoff from the site at the conclusion of construction. Finally, the Board finds that a house of the proposed size is consistent with the character of the surrounding area and appropriate for this parcel, and that the construction of a house on this parcel is the only feasible use of the land, given zoning and surrounding uses. Moreover, since there will be no increase in net runoff, there is no justification for requiring that the house be smaller. 3. The proposed activity will result in no more than insubstantial degradation to, or loss of any part of the wetland because of the minor impact of the activity and the protective conditions imposed by this resolution. 4. The proposed activity will be compatible with the public health and welfare, for the reasons stated above. Planning Board April 8, 1998 Page 20 ® BE IT FURTHER RESOLVED, that the application of Bobby Ben-Simon for a permit,pursuant to Local Law #7 of 1986, be and it hereby is GRANTED subject to the following terms and conditions: 1. This permit is personal to the applicant and may not be transferred to any other individual, entity or combination thereof; 2. All debris is to be removed prior to the,completion of the project. Construction must be in accordance with the requirements of the Town Flood Damage Prevention Code and the Town Erosion and Sedimentation Control Law. 3. Work involving site preparation shall only take place from Monday through Friday between the hours of 8:30 a.m. and 4:30 p.m. 4. A dry well is proposed adjacent to the bridge, in the driveway, on the house side of the river. If it cannot be installed due to high ground water, the applicant will use a dispersion structure similar to the one on the street side of the river. The applicant will then place an additional dry well elsewhere on the house side of the stream to maintain no net increase in run-off. 5. The number of trees to be planted will be recommended by the Tree Commission and the recommendation will be binding. 6. The permit is approved subject to the revised plan dated April 6, 1998, page 2 of 2. 7. A cash deposit or bond, in an amount to be determined by Malcolm Pirnie, shall be 3furnished to the Town by the applicant to ensure the satisfactory completion of the project and the rehabilitation of the affected or disturbed area. 8. This permit shall expire upon completion of the proposed activity or one year from the date of its issue, whichever first occurs. NEXT MEETING The next meeting of this Board will be held on May 13, 1998. ADJOURNMENT On a motion made by Ms. Aisen, seconded by Ms. Harrington, the meeting was unanimously adjourned at 10:45 p.m. )21 ai. :4Azidt R.,,w,...(.) Marguerite R , Recording Secretary MINUTES OF THE REGULAR MEETING OF THE PLANNING BOARD OF THE TOWN OF MAMARONECK APRIL 8, 1998, IN THE SENIOR CENTER, TOWN CENTER 740 WEST BOSTON POST ROAD MAMARONECK, NEW YORK Present: Marilyn S. Reader, Chairwoman May W. Aisen Richard H. Darsky Linda S. Harrington C. Alan Mason Edmund Papazian Also Present: Robert S. Davis, Counsel Antonio V. Capicotto, Consulting Engineer Judy Perrino and Katie Cullen, Public Stenographers Terranova, Kazazes & Associates, Ltd. 40 Eighth Street New Rochelle, New York 10801 • Marguerite Roma, Recording Secretary CALL TO ORDER The meeting was called to order by Chairwoman Marilyn Reader at 8:25 p.m. APPROVAL OF MINUTES Ms. Reader asked if the Board members had reviewed the draft Minutes of the February 11, 1998 and March 11, 1998 meeting and if there were any amendments. After some discussion, on a motion made by Ms. Aisen, seconded by Ms. Harrington,the Minutes for February 11, 1998 meeting were unanimously approved. On a motion made by Dr. Mason, seconded by Mr. Darsky, the amended Minutes for March 11, 1998 meeting were unanimously approved. Ms. Reader stated that due to the fact that additional materials were received this evening on the first matter, DECISION - FRESHWATER WETLANDS AND WATER. COURSES PERMIT - GRIFFEN AVENUE/Bobby Ben-Simon, the matter may take more time and that there are two other matters on the calendar. After some discussion, the consensus of the Board is to start the meeting first taking matter number three, matter number four and then matter number 2. Chairwoman Reader read the application as follows: PUBLIC HEARING - SPECIAL PERMIT - George Poline/2 Kitchens - 2423 Boston Post Road - Block 505 Lot 463 On a motion made by Dr. Mason, seconded by Ms. Aisen, 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. Mr. Poline appeared before the Board. Planning Board April 8, 1998 Page 2 Ms. Reader asked if Mr. Poline had any new information for the Board. Mr. Poline said there is no new information to present to the Board. Ms. Reader asked if the hours of operation will be the same as the previous hours of operation, 11:00 a.m. to 10:30 p.m., which Mr. Poline verified. Mr. Reader read a letter received from the CZMC dated April 6, 1998, signed by the chair persons which had no objection to the project. Mr. Davis said the matter was referred to the Westchester County Planning Board, from which there has been no response. Mr. Athey verified the Westchester County Planning Board had been notified, and no comment was received. A discussion ensued regarding the date of the referral, no comment being received and the fact that the Westchester County Planning Board has previously had three applications for the same premises for which no comments have ever been received. Ms. Reader said with that on the record, the Board will proceed with this matter. Mr. Reader asked if there were any further comments from the Board and the public. There being none, on a motion made by Dr. Mason, seconded by Ms. Aisen, it was unanimously RESOLVED, that the Public Hearing be, and hereby is, declared closed. On a motion made by Ms. Harrington, seconded by Ms. Aisen, the following resolution was unanimously APPROVED: WHEREAS, Tanasak Trisophon submitted an application for a Special Use Permit for use of the premises at 2423 Boston Post Road and known on the Tax Assessment Map of the Town of Mamaroneck as Block 505 Lot 463 as a Japanese/Thai take-out restaurant, 2 Kitchens; and WHEREAS, a Public Hearing having been held on April 8, 1998 pursuant to notice; and WHEREAS, the Planning Board having considered the application for a Special Use Permit, the plans and zoning report and environmental analysis submitted by the applicant, comments and responses to questions by the applicant, the reports and comments of the Consulting Engineer to the Town and having heard interested members of the public; RESOLVED, that the Planning Board finds this matter to have no substantial environmental impact, no change from prior use and directs the filing of a Negative Declaration; NOW, THEREFORE, BE IT RESOLVED that this Board makes findings of fact as follows: 1. The proposed use as limited by the conditions set forth herein is in general harmony with the surrounding area and shall not adversely impact upon the adjacent properties due to traffic generated by said use or the access of traffic from said use onto or off of adjoining streets; 2. The operations in connection with the Special Use Permit will be no more objectionable to nearby properties by reason of noise, fumes, vibrations, flashing of lights or other aspects than would be the operations of any other permitted use not requiring a Special Use Permit; Planning Board April 8, 1998 Page 3 3. The proposed Special Use Permit use will be in harmony with the general health, safety and welfare of the surrounding area by the nature of its particular location. It will not adversely impact upon surrounding properties or surrounding property values. BE IT FURTHER RESOLVED, that this Board APPROVES the application of Tanasak Trisophon for a Special Use Permit for a Japanese/Thai take-out restaurant, 2 Kitchens, subject to the following terms and conditions: 1. The hours of operation of the store shall-be 11:00 a.m. to 10:30 p.m. daily. 2. Permit shall expire after two (2) years. 3. This Special Use Permit is subject to the termination requirements set forth in Section 240-64 and 240-65 and the use restrictions set forth in Section 240-30-B of the Zoning Code of the Town of Mamaroneck. Chairwoman Reader read the next application as follows: PUBLIC HEARING-SPECIAL PERMIT-TRADER JOE'S EAST,INC. -1262 Boston Post Road- Block 407 Lot 192 On a motion made by Dr. Mason, seconded by Mr. Darsky, 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. Donald S. Mazin of 1415 Boston Post Road, Larchmont, New York, attorney representing Trader Joe's appeared. Mr. Mazin said his client has been before the Board before and before every Board since May. His client has approval for all signs from the Board of Architectural Review, has a permitted use and is before the Planning Board to apply for a special permit as his client would like to have a Grand Opening on April 17, 1998. Mr. Mazin informed the Board that the store is a high quality grocery store that sells unique products and intriguing food at value prices. There are approximately 100 stores throughout the country and it is well-known. Mr. Mazin stated he submitted a large application to the Board with pertinent information and that Bob Langone, Vice President of Trader Joe's is present to answer any questions the Board might have. Mr. Mazin added that Trader Joe's is only a tenant, has no control of area and that the landlord has already obtained site plan approval. ' Ms. Reader asked if Mr. Mazin had appeared before the Zoning Board. Mr. Mazin said the applicant has not been to the Zoning Board, but has to appear before the Planning Board on this application as it is a special permit use. He also stated there is no change in the footprint. Bob Langone stated he has previously been before the Board. He proceeded to explain that Trader Joe's is a unique grocery store. People like to shop at Trader Joe's because there are always different items, it is a value market and all the items are sold at the best possible price. There are no other stores in the area like Trader Joe's. Ms. Reader asked Mr. Langone what hours of operation he is seeking. Mr. Mazin said the applicant would like the hours of operations to be from 8:00 a.m. to 10:00 p.m., Monday through Sunday. A discussion ensued regarding the hours of operation of the various stores located in that shopping area. Planning Board April 8, 1998 Page 4 Mr. Davis pointed out that in connection with site plan approval the Planning Board adopted a Negative Declaration dated November 12, 1997 and all the required referrals were completed. Ms. Reader said all that information was included in Mr. Mazin's submission documents, and thanked Mr. Davis for putting that on the record. Dr. Mason asked the square footage of the store. Mr. Mazin said the stores is 7,890 sq. ft. Dr. Mason said that the changes the landlord provided for the driveway makes a big difference and solved the additional traffic concerns that might be generated by this project that the Board had. Ms. Reader asked if there were any other comments from the Board or the public. Jerry Glaser, 19 Rockridge Road, Larchmont, New York appeared before the Board. Mr. Glaser stated that Mr. Mazin mentioned Trader Joe's is the tenant that controls the area and stated they have been able to affect changes in the area; i.e. the driveway, an additional sign and the lighting. The lighting is what Mr. Glaser would like to address. Mr. Glaser stated his residence is located behind Nathan's, up on the ridge of the hill. The lighting has been enhanced in the parking lot of Trader Joe's with additional lights, brighter lights, lights that are tilted in the direction across the Boston Post Road. The density of the lights is brighter than in any other parking lot in any other commercial venture on the Boston Post Road and compared the lighting to the Stop and Shop parking lot which, by comparison, they have no lights. Mr. Glaser proceeded to give examples of nuisances caused by the brightness of the lighting. Mr. Glaser then addressed the number of lights on the poles and asked how high above the street level can lights be placed to illuminate a business enterprize, as the height of the lights in the parking lot is increased by the topography. Mr. Glaser asked what angle can lights assume, stating that Nathan's has lights with caps that direct the lights down. Mr. Glaser asked if the Town has a regulation the does not permit bright lighting to intrude upon a neighbor and asked if the Town wants a business strip to be as garish as those found in many areas of the country, citing various examples. Mr. Glaser said he noticed the change about three or four weeks ago. Mr. Glaser said it is possible that the owner does not realize permission is needed to change the angle of lights or to install additional lights. Mr. Glaser also addressed the hours of operations and suggested the possibility of dimming the lights after twelve, after hours of business, and addressed the angle, intensity and density of the lights. Dr. Mason stated this is not a new concept to the Board, but one of the concerns frequently addressed is directing lighting downward. It is a problem for the Building Department to address and the Planning Board will call it to their attention. Mr. Glaser informed the Board that he contacted the Director of Building, Ron Carpaneto, who said he will look into the matter. Ms. Reader asked counsel about imposing conditions regarding lighting on a special use permit request, and cited various previous approvals; i.e. Nathan's, the car wash toward New Rochelle in the shopping center, Ray Catena Lexus. Ms. Reader said she did not recall the lights being part of the site plan. A discussion ensued regarding same. Mr. Capicotto said one light pole was moved over because of the road widening. Ms. Reader said if there is a change in lighting, who did it and under what terms, and is it something KRT, the management, has a right to do. Mr. Mazin said the only light in question was the light by the driveway. Mr. Davis asked Mr. Mazin if he knew of any change in the intensity of lighting. Planning Board April 8, 1998 Page 5 Mr. Mazin said he has no knowledge of that. Dr. Mason asked if Mr. Langone made any demands on the landlord for better lighting. Mr. Langone said not that he recalls. He wants to cooperate with the neighbors and will recommend that the landlord turn down the lighting if it can be done. Ms. Reader said several items must be addressed; i.e. lighting redirected so they do not illuminate beyond the property, lighting shielded so they do not illuminate upward, lighting dimmed after certain hours. Mr. Mazin said the tenant has no control over the landlord's lights. Mr. Capicotto said there is a possibility that the lights were there but the bulbs were out and now replaced. A discussion ensued regarding the replacement and repair of the lighting. Ms. Reader informed Mr. Glaser that the problem is that the landlord is not before the Planning Board, the tenant is before the Planning Board. The tenant has indicated a willingness to speak to the landlord to have the lighting addressed, and Mr. Glaser has spoken to Mr. Carpaneto regarding this matter. Mr. Glaser said Mr. Carpaneto said he will get back to him. Mr. Davis stated he is not sure the code addresses this issue; i.e. pole heights. Ms. Reader said when site plans are considered, it is addressed. Mr. Davis said this issue could have been raised during site plan application, but a special permit application is merely addressing the appropriateness of the use. Mr. Davis said the question has been raised with the Building Inspector, if there is a code issue it will be investigated and a violation will be issued. Mr. Glaser said even if there is no code issue, there is a problem. Ms. Harrington said the most influential tenant is present, who is willing to speak to the landlord and address the issue and feels that is reasonable. Mr. Reader said it is not an issue with the application before the Board this date. Ms. Reader advised Mr. Glaser to speak to Mr. Carpaneto to see if there has been a change•at which time he can refer to the original site plan. Mr. Davis referred the Board to the Zoning Code Section 240-45 which states, all lighting shall be so located and shaded in a manner that the light source itself is not visible beyond the boundaries of the lot upon which it is located. Ms. Reader informed Mr. Glaser that Mr. Carpaneto can enforce this issue. Dr. Mason stated in the Coastal Zone Management Commission Local Waterfront Revitalization Program, there is a policy about inward directed lighting and avoiding light pollution. There is a strong legal support • in what Mr. Glaser is trying to do, and he should not have a problem in achieving that issue. Bill Eng of Rockridge Road appeared and pointed out that Con Edison trucks had been in the area and said that someone must have made an application to have stronger cables to support the lights. Dr. Mason said Con Edison would not be doing that on private property. Ms. Reader asked if there were any other comments from the Board or the public. Planning Board April 8, 1998 Page 6 Mr. Mazin stated that Trader Joe's would like to have a grand opening on April 17, 1998 and requested the Board's approval. Ms. Reader asked if there were any further comments. There being none, on a motion made by Mr. Darsky, seconded by Mr. Papazian, it was unanimously RESOLVED, that the Public Hearing be, and ilereby is, declared closed. On a motion made by Dr. Mason, seconded by Ms. Harrington, the following resolution was unanimously APPROVED: WHEREAS, Trader Joe's East, Inc. submitted an application for a Special Use Permit for use of the premises at 1262 Boston Post Road and known on the Tax Assessment Map of the Town of Mamaroneck as Block 407 Lot 192 to operate a store for the sale of goods at retail; and WHEREAS, a Public Hearing having been held on April 8, 1998 pursuant to notice; and WHEREAS, the Proposed Action is an unlisted action pursuant to SEQRA and MEQRA, see 6 N.Y.C.R.R. §§617.4 and 617.5;Town of Mamaroneck Code §§92-7(A)and(B),and the Planning Board previously issued a Negative Declaration. WHEREAS, the Planning Board previously granted Site Plan approval; WHEREAS, the Planning Board having considered the application for a Special Use Permit, the plans and zoning report and environmental analysis submitted by the applicant, comments and responses to questions by the applicant, the reports and comments of the Consulting Engineer to the Town and having heard interested members of the public; NOW, THEREFORE, BE IT RESOLVED that this Board makes findings of fact as follows: 1. The proposed use as limited by the conditions set forth herein is in general harmony with the surrounding area and shall not adversely impact upon the adjacent properties due to traffic generated by said use or the access of traffic from said use onto or off of adjoining streets. 2. The operations in connection with the Special Use Permit will be no more objectionable to nearby properties by reason of noise, fumes, vibrations, flashing of lights or other aspects than would be the operations of any other permitted use not requiring a Special Use Permit. 3. The proposed Special Use Permit use will be in harmony with the general health, safety and welfare of the surrounding area by the nature of its particular location. It will not adversely impact upon surrounding properties or surrounding property values. BE IT FURTHER RESOLVED, that this Board APPROVES the application of Trader Joe's East, Inc. for a Special Use Permit for a high quality grocery store subject to the following terms and conditions: 1. The hours of operation will be 8:00 a.m. to 10:00 p.m. daily. 2. Permit shall expire after two (2) years. 3. This Special Use Permit is subject to the termination requirements set forth in Section 240-64 and 240-65 and the use restrictions set forth in Section 240-30 of the Zoning Code of the Town of Mamaroneck. Planning Board April 8, 1998 Page 7 Ms. Reader wished the applicant good luck and a happy grand opening. Chairwoman Reader read application number 1, as follows: DECISION - FRESHWATER WETLANDS AND WATER COURSES PERMIT - GRIFFEN AVENUE/Bobby Ben-Simon - Block 305 Lot 903.2 Ms. Reader stated for the record the Board received, prior to this evening, a letter dated March 21, 1998 with attachments signed by Jane and Eugene Kaplan and Barbara Berdon from 7 Split Tree Road and 5 Split Tree Road, respectively, which asked for a clarification of why in an earlier letter from Malcolm Pirnie it was indicated that the application was within the 100-year flood plain and a later letter from Malcolm Pimie indicated it was not in the 100-year flood plain and asked Mr. Capicotto to address that issue. Mr. Capicotto said as previously mentioned and explained to Mr. Kaplan when the application first came forward, the elevations on the drawing were compared to the 100-year flood plain elevation as presented by the Federal Map. The 100-year flood elevation in that area was 102. The elevation shown on the drawings were all below that elevation and the assumption was made that it was within the flood plain and asked that it be checked into. It was reviewed and found that the survey presented was based on arbitrary survey datum and not on the USGS flood maps and explained the process used in the determination. When the Federal Map is used with the correct elevations tied into the USGA datum, the property is well above 102 and more around 150. Ms. Reader asked if any of the property is in the flood plain. Mr. Capicotto said none of the property is in the flood plain. Mr. Capicotto said that Mr. Senor faxed him a copy of the map, which helped him understand why the area was not in the flood plain. A discussion ensued regarding calculations of flood plains and the use of arbitrary numbers. Robert Funicello said he discovered in reviewing this particular matter that the Town of Mamaroneck has elevation maps based upon aerial photographs of the entire Town of Mamaroneck and any applicant in the Town of Mamaroneck that wants to know the elevation of its property can get a copy of same. It is just an observation and not directly related to this issue. Ms. Reader stated the Town has USGS maps which are the flood-plain maps which were not initially used by Mr. Senor. Mr. Davis said that the carelessness was actually a detriment to the client. Ms. Reader asked if Board members had any other questions. Dr. Mason said there was the question of the strength of the bridge. The Board has received communication regarding various vehicle weights from James Athey, Environmental Coordinator. Ms. Reader said that the communication received references vehicle weights using the bridge, and asked if the bridge is strong enough. Mr. Capicotto said the bridge design has not yet been submitted,which will be forthcoming as part of the building permit application. Ms. Reader asked Mr. Davis if that is one of the elements of the Freshwater Wetlands Permit. Mr. Davis said a structural issue is a Building Department issue, as the Building Department has to be satisfied with the structural integrity of the bridge at the time the permit is issued for construction. The Board can condition satisfying the Building Department standards to carry that kind of load. Planning Board April 8, 1998 Page 8 ei Ms. Reader stated under the new plans submitted this date there is a row of rhododendron that seem to be additional rhododendron and asked if they are additional to what was previously indicated, as natural vegetation along the sides was originally proposed. Eliot Senor said they are new plantings, twelve to fifteen 6 ft. high rhododendron. Ms. Reader asked if the new plantings are on the revised.plans, S-2 of 2, dated April 6, 1998, which Mr. Senor verified. The first page is not changed. Ms. Aisen asked counsel in reference to the last paragraph on page 1 in the letter from Malcolm Pirnie, dated March 24, 1998, does the Board have to consider it a hardship if the Board does not permit the applicant to build a pool. Mr. Davis said no, the Board has to make a decision about the construction of the pool in accordance with the standards for a wetland permit. Ms. Aisen said it may be an issue in addressing the letter received from the individuals at Split Tree Road and asked if the pool is included in the quantity of runoff. Mr. Capicotto said yes, everything proposed is included. Ms. Aisen asked if the Board will address the letter received from the individuals on Split Tree Road point by point. Ms. Reader stated most of it was addressed at the last meeting. Eugene Kaplan of 7 Split Tree Road, Scarsdale, said most of it was addressed at the last meeting but not answered. Ms. Reader stated some of it is a question of conclusion. Mr. Kaplan said there are certain conditions that were agreed to by Mr. Senor at the last meeting. The new map which was just filed two days ago only shows the extra rhododendron in the back. Mr. Senor also agreed that there would be a planted berm to be raised between the pool deck and the rear of the property and a siltation fence along the rear of property during the construction period. Ms. Reader stated a siltation fence is required by the Building Department. Mr. Capicotto said the berm is shown on the new drawing in the ground contours and expanded on that issue. Ms. Reader stated the height of the ground is being raised in that location higher than it originally was in the plans, and it will come back down to ground level. Ms. Senor said rhododendron will be planted on top of the berm. Ms. Aisen asked if the height of the berm is important. Mr. Senor said the height of the berm is shown to be approximately 2 ft. to 4 ft. high depending on location. Mr. Kaplan said silt fences and hay bales are shown in various locations, but he does not see any in the back of the property. Mr. Senor said the plan is labeled silt fence along the property line and is written with an arrow. Planning Board April 8, 1998 Page 9 Ms. Reader said whenever there is construction, the rules of the Building Department regarding erosion control requires hay bales and silt fencing to be in place. Ms. Reader asked if Mr. Kaplan had any other concerns regarding the letter from the individuals on Split Tree Road. Mr. Kaplan asked how a pool will be built over a water.table that is two (2) ft. below the surface. Mr. Capicotto referred to the ground contours and stated that area will be filled in with approximately six (6) ft. of clean fill. Mr. Senor said the high end will be four(4)ft.and the low end will be six(6) ft. The pool is never empty and there will not be a problem. Mr. Kaplan said there is water from the pool deck which is substantial. Ms. Reader asked what the deck is composed of. Frederic Zonsius, the architect for the project, said the deck is composed of porous pavers which are sloped toward the pool and all runoff goes into the pool. Ms. Reader said there is also a catch basin on a portion of the deck that doesn't slant to the pool. Mr. Senor said there is still zero net runoff, even when there is a heavy rainfall. The berm prevents any water running off the pool deck from getting onto Mr. Kaplan's property. Mr. Zonsius said the berm is not required for zero runoff, but Mr. Kaplan requested it and the applicant spent the money to accommodate Mr. Kaplan's concerns. Ms. Reader said in understanding what Mr. Zonsius is saying, without the berm there is zero net runoff, which Mr. Zonsius and Mr. Capicotto confirmed. Ms. Reader stated it is an additional security. Mr. Kaplan asked if in the original calculation the land was to be built up where the proposed pool was set to be. Mr. Senor said part of the original plan showed the pool in the raised elevation and the layout has not been changed. Mr. Kaplan also raised concerns about the destroye lestroyed trees are to be replaced with fifteen or twelve trees. Mr. Kap ►e tree permit, nor the absorption capacity of the replacements specifie( Ms. Reader stated this was addressed at the last met net runoff. Mr. Papazian said the Tree Commission was suppos Mr. Zonsius said a tree application was submitted, letters were sent out with a ten day review period, at which time the Tree Commission makes recommendations regarding trees to be removed and replacement trees. Ms. Reader asked if Mr. Zonsius will comply with conditions set by the Tree Commission,with which Mr. Zonsius agreed. A discussion ensued regarding the number of trees to be removed and replaced. Planning Board April 8, 1998 Page 9 Ms. Reader said whenever there is construction, the rules of the Building Department regarding erosion control requires hay bales and silt fencing to be in place. Ms. Reader asked if Mr. Kaplan had any other concerns regarding the letter from the individuals on Split Tree Road. Mr. Kaplan asked how a pool will be built over a water.table that is two (2) ft. below the surface. Mr. Capicotto referred to the ground contours and stated that area will be filled in with approximately six (6) ft. of clean fill. Mr. Senor said the high end will be four(4)ft.and the low end will be six(6)ft. The pool is never empty and there will not be a problem. Mr. Kaplan said there is water from the pool deck which is substantial. Ms. Reader asked what the deck is composed of. Frederic Zonsius, the architect for the project, said the deck is composed of porous pavers which are sloped toward the pool and all runoff goes into the pool. Ms. Reader said there is also a catch basin on a portion of the deck that doesn't slant to the pool. Mr. Senor said there is still zero net runoff, even when there is a heavy rainfall. The berm prevents any water running off the pool deck from getting onto Mr. Kaplan's property. Mr. Zonsius said the berm is not required for zero runoff, but Mr. Kaplan requested it and the applicant spent the money to accommodate Mr. Kaplan's concerns. Ms. Reader said in understanding what Mr. Zonsius is saying, without the berm there is zero net runoff, which Mr. Zonsius and Mr. Capicotto confirmed. Ms. Reader stated it is an additional security. Mr. Kaplan asked if in the original calculation the land was to be built up where the proposed pool was set to be. Mr. Senor said part of the original plan showed the pool in the raised elevation and the layout has not been changed. Mr. Kaplan also raised concerns about the destroyed trees and the fact that eighteen destroyed trees are to be replaced with fifteen or twelve trees. Mr. Kaplan read and does not understand the tree permit, nor the absorption capacity of the replacements specified. Ms. Reader stated this was addressed at the last meeting. The Board is addressing zero net runoff. Mr. Papazian said the Tree Commission was supposed to meet and it did. Mr. Zonsius said a tree application was submitted, letters were sent out with a ten day review period, at which time the Tree Commission makes recommendations regarding trees to be removed and replacement trees. Ms. Reader asked if Mr. Zonsius will comply with conditions set by the Tree Commission,with which Mr. Zonsius agreed. A discussion ensued regarding the number of trees to be removed and replaced. Planning Board April 8, 1998 Page 10 Mr. Athey stated the reason more trees are recommended on site is the fact that there is limited space and a County easement. The recommendations are as follows: fifteen trees with a$2,500 bond or twelve trees with a $750.00 bond and $750.00 to the Tree Fund, an option given to property owners when space is limited. It is not an uncommon request. A discussion ensued regarding the runoff, water absorption and capacity of water absorption that takes place as part of the wetlands process regarding the trees.being removed and being replaced. Ms. Reader stated it is not an issue of tree for tree. The issue is zero net runoff. The project will end up as a different piece of property than currently exists. The formula being looked at has a lot of variables to it; i.e. absorption, dispersion, compensating for the change on the property because it is not all grass and trees anymore. One of the major changes is catch basins and the various dispersion structures. When a tree is removed, generally it is not required by the Board that equal trees be replaced. Each project must be reviewed in itself and the whole formula reviewed. It has been indicated to the Board that twelve trees, plus an ornamental tree, will be replaced, and perhaps more trees if the Tree Commission indicates same. It can be made a condition of approval. A discussion ensued regarding the removal of a 24 in. Tulip tree proposed to be removed, to the left of the proposed pool deck. Jane Kaplan of 7 Split Tree Road appeared and addressed the Board. Ms. Kaplan asked in computing the zero runoff figure if that is greatly dependent on the slow release of water from the dry well, which Mr. Capicotto verified. Mrs. Kaplan said what Mr. Capicotto is saying is that it is the combination of the replacement trees and the dry wells. Mr. Capicotto said it is only the dry wells, the trees are not looked at. From late fall until the end of winter, trees are not drawing any water. Mrs. Kaplan asked if dry wells fill up, and how long can an individual depend on a dry well to fulfill the zero runoff assumption. Mr. Capicotto explained the process involved in the workings of a dry well and said the size of the dry wells is eight ft. in diameter by five ft. deep. Mr. Kaplan said the dry wells have to be cleaned periodically. Robert Funicello, attorney, asked to address the Board. With respect to this issue,Westchester County's Non-point Pollution Committee adopted a program which has been submitted and adopted by the Town of Mamaroneck for Watershed Advisory Committee Area Three. In that report the general life of an infiltration device of this kind is five years, based upon DEC standard information. Dr. Mason asked if Mr. Funicello is talking about direct inflow to the infiltration device or inflow after it has been directed to a settling device such as a catch basin. Mr. Funicello said he was referring to the report. Dr. Mason said Mr. Funicello is not answering the question. Mr. Funicello said he is not sure. Mr. Davis interrupted this conversation by stating the meeting has moved from a discussion of questions based on the record prior to the close of the hearing. It seems that Mr. Funicello is moving in the direction of bringing to the Board's attention new information which was not on the record. The Board should decide the direction it is moving in as the hearing was closed at the previous meeting and a Negative Planning Board • April 8, 1998 Page 11 ® Declaration was adopted. Mr. Davis was not aware new material was going to be submitted this evening, and has not reviewed same. There are problems involved in a Board making a decision based on information received after the close of a hearing and the record. Ms. Reader agreed with Mr. Davis that new and different information is being submitted this evening. Mr. Funicello said plans and letters were submitted following the close of the hearing. Ms. Reader said that was consistent with what had been discussed at the last meeting. Ms. Reader stated the new plan submitted by the applicant, Mr. Kaplan's letter and the discussion taking place about them is for the Board to confirm that what was agreed upon at the last meeting is what is being done by the applicant. Mr. Kaplan framed the request last time at a public hearing. Mr. Senor and Mr. Ben-Simon agreed to satisfy Mr. Kaplan's request and members of the Board had certain concerns that needed to be addressed. Mr. Funicello asked if the Board will consider reopening the public hearing, as Mr. Funicello has significant information that is at odds with the fundamental data the Board is relying upon. Ms. Reader stated that procedurally the Board had no notice a public hearing would be held this evening. Mr. Funicello said on that issue he does not see how the applicant is prejudiced. Ms. Reader stated the Board would like to stay with the issues that are being discussed to clarify the answers the Board needed and to assure that the applicant has done what he agreed to do to meet Mr. Kaplan's concerns. Ms. Reader asked if there were any other questions. Dr. Mason said he was reviewing the Minutes to see that the Board covered the material that has been presented and it looks as though it has been covered. Mr. Zonsius said that Ms. Aisen mentioned the trees. Trees are being added along the Sheldrake Trail. The trees being removed are upland and trees are being planted where they are most needed, along the bank of the creek. The Willow trees being added will have a greater affect. Ms. Aisen said she stands corrected by the Board, as she has been a little over zealous about trees as there is zero net runoff. Ronald Scher of 124 Hickory Grove Drive, the attorney for Mr. Ben-Simon, appeared and stated it is his understanding that any plans filed subsequent to the last hearing on March 11, 1998 were in compliance and conformance with the recommendations of the committee with respect to Mr. Kaplan's request and his concerns. They dealt specifically with that limited issue to comply with the recommendations of the committee. Mr. Scher will address any other concerns regarding the letter submitted this date, which he feels is improper to be heard this date. Ms. Reader asked the Board's consensus with respect to the new material submitted this evening. Dr. Mason and Ms. Harrington said they did not want to get into the new material. Ms. Reader feels the one issue not addressed, possibly an issue between the parties, is the restrictive covenant. Mr. Davis interrupted stating the hearing that was conducted on this matter was duly noticed. No request was made during that hearing to keep the matter open so additional information could be submitted. If the Board should choose to make a decision, the decision would be judged based on the record before the Board at the time of the hearing. Without reopening the hearing, which would require renoticing the hearing, it would be improper to receive and act on new evidence. Mr. Davis also explained the Board's obligation with respect to rescission of negative declarations and referred to and read Section 617.7(f)of Part 617 of the New York Code of Rules and Regulations entitled Rescission of Negative Declaration. Planning Board April 8, 1998 Page 12 Mr. Davis then commented on the restrictive covenant, stating it is a matter of private concern between the parties. Mr. Davis said the Board has before it the deed to Mr. Funicello's client but not the deed to Mr. Ben-Simon or whoever is the current owner of the other parcel which would provide information with respect to how that property was purchased and what it is subject to. Mr. Scher said that can be submitted, but with respect to the restrictive covenant it is a matter of civil issues between the parties. Mr. Scher said he has been'in contact with Mr. Weisfeld's previous attorney as recently as last week with respect to this issue and trying to work out some understanding concerning the negative covenant. Mr. Scher spoke with Mr. Foreman and was surprised to hear this date from Mr. Funicello and receive a letter as he was attempting to work out the reduction of the garage by three ft. in order to comply with whatever restrictive covenant there is to avoid further civil litigation. Ms. Reader said if the garage is reduced by three feet, the applicant will be at the eighteen foot line and that will moot the restrictive covenant, which Mr. Scher verified. Mr. Davis asked if Mr. Scher is conceding the covenant exists and is enforceable. Mr. Scher said no, but he has a proposed letter agreement to Mr. Weisfeld's attorney with respect to this issue. He does not feel that is an issue for the Town. Mr. Funicello asked if he can address the SEQRA matter and present an application for this matter to be reheard based on the information he is supplying this evening. Ms. Aisen objects to being presented with a serious document when arriving for the meeting. She cannot address the issue. It is difficult to evaluate whatever appeals are made because she has not read what Mr. Funicello submitted this evening. The Board has to consider the fact that other Board members as well have not read this evenin<g's submission and it is difficult to assess the seriousness of the matter. Ms. Reader stated the Board members received this information this evening, and asked if Mr. Capicotto also received this information this evening. Mr. Capicotto verified that the information was received this evening and can only speak in a limited fashion on the ecological report, as he is not a wetlands expert and must have the experts at Malcolm Pirnie review same. Ms. Reader stated Mr. Capicotto provided the Board with a letter in terms of compatibility and asked if Mr. Capicotto had relied on the wetlands experts at Malcolm Pirnie in forming that opinion, which Mr. Capicotto verified. Ms. Reader asked the Board members if they wanted to hear from Mr. Funicello, as the public hearing has been closed and this is new information. Mr. Davis stated he wants to make it clear if the Board receives the materials, it is not a part of the record on which the Board will make a decision. Ms. Reader asked Mr. Davis if new information was received would it affect the Negative Declaration. Mr. Davis said the Board has to make a decision based on what is on the public hearing record. A decision on whether to re-open should be based on the adequacy of that record with consideration given to whether there was sufficient time to present the Board with information at the hearing and to the fact that someone was coming in at the last minute. Mr. Davis said if the Board has concerns about certain issues, the Board would be permitted to vote to renotice the public hearing and reopen the matter. There is no public hearing notice this evening. The applicant and other members of the interested public thought the public hearing was closed. • • Planning Board . April 8, 1998 Page 13 Mr. Darsky said the Board should consider it and have the public hearing reopened or don't consider it. Before doing so he suggests that the applicant be heard with respect to what prejudice there would be. Mr. Davis suggested allowing Mr. Funicello a defined period to make the application, so the applicant's attorney can respond to something precise rather than anticipated. Mr. Darsky asked what prejudice would be realized by-the applicant. Dr. Mason stated the applicant made that clear at the last meeting. Mr. Scher said there is a one-time four (4) month consecutive easement for the adjoining property to use Mr. Weisfeld's property for construction which closes June 15th through a window of August. If approval is received construction can commence at this time and the bridge construction can be finished on the area designed for the temporary construction easement. The applicant now has only a two and one-half month's time left for the applicant to notice them, utilize the easement for construction purposes and finish by June 15, 1998. The applicant can do that within the time frame utilizing the engineer and the contractors. If this is delayed any further, the applicant will not be able to complete the construction before the deadline of June 15, 1998 and will loose the entire summer construction period and not be able to start the construction on the bridge until after the summer. The building will probably not be able to be completed until next year, 1999. It is solely for the purpose of doing the construction for the bridge. There are other easements to put in temporary and permanent utilities for the construction, but this is the critical aspect which will cause undue hardship and unnecessary financial loss. Mr. Darsky asked if this could be contractually expanded if the parties so desire. Mr. Scher said an attempt was made to contractually increase the applicant's time to use the easement with en— Mr. Weisfeld's former or existing attorney when discussing the negative covenant but Mr. Weisfeld did not want to do that. Mr. Scher has been advised Mr. Weisfeld will not negotiate whatsoever. The applicant has a limited time to do the construction. It is a formalized recorded easement set forth in deeds between the predecessors. Ms. Reader does not recall a condition indicating a limited period of time for construction during site plan approval. When site plan was done on the Lourie project, it was Gary Trachtman's observation that a construction easement was needed until the new road was built. It was originally planned to have a shared driveway that would branch off to the two properties. Mr. Weisfeld did not want to share the driveway, so a change was made. The plans then required a new road with a bridge. Bobby Ben-Simon appeared and stated Mr. Weisfeld purchased the property after the subdivision. Ms. Reader said maybe it was Mr. Ben-Simon that did not want the shared driveway. A discussion ensued regarding the subdivision, the construction easement and the final plat. Mr. Scher said the easement is attached to the papers which specifically sets forth the four month easement shall not encompass the period of June 15th through August 31st. Ms. Reader asked if that was a modification when Mr. Weisfeld purchased the property. Mr. Scher said it was not a modification when Mr. Weisfeld purchased the property,but was the easement agreement between Mr. Weisfeld and Mrs. Lourie. Mr. Davis suggested the Board make a decision whether it is satisfied with the record before the Board and is prepared to go forward on reliance of the Negative Declaration adopted at the last meeting or whether it is not satisfied with that record and allow itself to reopen the public hearing to allow itself time to reconsider that issue. The Board can consider whether matters brought to its attention compels the Board to do that, but should consider the timing. If the Board is convinced it should rescind the Negative Planning Board April 8, 1998 Page 14 Declaration and reopen the hearing to explore it, Mr. Davis is not sure if hardship on the applicant is sufficient reason not to do it. On the other hand, if the Board is not convinced of that, the Board has to move forward. Mr. Darsky feels he has to weigh the hardship issue. Robert Funicello, attorney representing Barry Weisfeld.who lives adjacent to the subject property with offices at 100 Mamaroneck Avenue, Mamaroneck, New York appeared. Mr. Funicello explained why the material was submitted this evening. The applicant has whatever time it takes to prepare an application and presumably did that. Mr. Funicello's client gets ten(10)days notice. Within that ten(10)day period attended a public hearing and made a presentation as Mr. Funicello was unable to be contacted. Mr. Funicello was contacted shortly after the last public hearing. Made inquiries about the status of the matter, minutes were unavailable and received no official word as to what had happened at the meeting. Mr. Weisfeld did inform Mr. Funicello that the public hearing had been closed. Mr. Funicello made an inquiry of one Board member, Dr. Mason, and was told the public hearing was closed and matters were to be considered. Dr. Mason said consideration is what is being done this evening and stated Mr. Funicello should not imply that consideration was a consideration of this additional material which Dr. Mason feels was entirely inappropriate. Dr. Mason stated he brought the call from Mr. Funicello to the attention of counsel the same day. Mr. Funicello said he would have called Mr. Davis if he knew he was involved. Mr. Funicello apologized to the Board if something was done that is inappropriate. Ms. Reader suggested procedurally, Mr. Funicello should have called the Building Department and spoken to the secretary to the Boards who would have directed him to counsel. Mr. Funicello said copies of the file were obtained, a consultant, Dru Associates, was retained. The site was inspected the end of March or the beginning of April. Reports were prepared, the law was reviewed based on that report and the letter written which was delivered this evening. Mr. Funicello said he understands it is difficult to review information submitted at the last minute, but feels there is material information that was submitted that is significantly wrong. Mr. Darsky interrupted stating the Board has not yet decided whether or not the application can be made. and he should stop immediately. • After some discussion, Mr. Davis said there is no set of procedures'that instructs the Board on how to proceed at this point. An application means a request and an explanation of the request for the Board to take certain actions which it may or may not be obligated to do. The Board is not obligated to hear that application. Mr. Darsky said nor is the Board obligated to hear the recursive of the application. Before the Board goes any further, Mr. Darsky would like to Board to agree if they want the application to be made. Ms. Aisen said she understands the Board can call for another public hearing if the Board determines there is new substantive information that should be considered. She cannot determine if what has been submitted this evening is substantive until it is read and if she would vote for or against an additional hearing of this application. Mr. Davis said he feels the entire Board is subject to the same disability. Ms. Harrington asked when Mr. Funicello approached Mr. Ben-Simon's attorney to start discussing the easement, the expansion of the easement and the time limit. Planning Board April 8, 1998 Page 15 Mr. Scher said initially counsel was contacted the second week of March, the first ten days. Mr. Scher said Mr. Foreman, was also contacted within the week, possibly March 10th, 12th or the 14th. Mr. Scher attempted to set forth their understanding in a letter which was sent March 24th. Every day he has called Mr. Foreman and is told there has no conclusion as Mr. Weisfeld is not considering anything. Ms. Harrington said even if the materials submitted this evening were received one week ago, it would have given the Board time to read it and feels there is no'reason it should have been submitted this evening. It places an unfair burden on the Board to be expected to read the submission and come to a decision or decide to hold something over or reopen the public hearing. Mr. Scher feels it is a delaying tactic, as Mr. Funicello clearly indicates he was involved at the time of the original hearing. A heated discussion ensued. Mr. Darsky said he would like to hear what Mr. Funicello has to say, if and only if it is limited to what is in the letter and nothing further. However, that is only one member of the Board's opinion. Mr. Ben-Simon said in February he sent a registered letter to Mr. Weisfeld which he never responded to. There was plenty of time to discuss these issues. Mr. Ben-Simon said plans were submitted late at the last meeting, and it was rejected to be dealt with in the appropriate manner. That is why he is before the Board this evening. Mr. Zonsius said the process was started December 15, 1997, and letters were sent out in regard to the Erosion Control Wetlands permit, initial review January 21, 1998, then February 21 and March 28. Ms. Reader asked Mr. Zonsius for clarification stating the Kaplan's made reference also to the EAF which omitted#a-19, whether the site was in a critical environmental area. Mr. Senor said a letter was received from the State stating it was in a Class C wetlands. Mr. Scher said what Mr. Senor was referring to was a Department of Army letter, dated March 26th, and DEC letter of January 30 which indicates it is in a Class C wetlands under the Environmental Conservation Law. Ms. Reader asked about the critical environment area. Mr. Zonsius said he is confused. Malcolm Pirnie is the firm that•was hired by the Town, who has reviewed all the application work. He does not understand why they wrote the letter that was written and why issues were not raised when the letter was written. Mr. Zonsius is shocked this is coming at this point in time. Mr. Davis asked Mr. Zonsius if he signed the environmental assessment,which Mr. Zonsius verified. Mr. Davis asked if the question that asked whether the site is in a critical environmental area was left blank, which Mr. Zonsius said yes because he did not know. Mr. Davis asked if Mr. Zonsius has had occasion to find out. Mr. Zonsius said he relied on Malcolm Pirnie to advise them. The EAF form is not to be filled out by the applicant. He believes it is to be filled out by government body, Malcolm Pirnie. Mr. Davis said the question Mr. Zonsius is referring to is in part I of the Environmental Assessment Form which is the responsibility of the applicant not the responsibility of the lead agent. Mr. Capicotto said it is run by the wetlands experts at Malcolm Pirnie. A discussion ensued regarding the significance under SEQRA. Planning Board April 8, 1998 Page 16 Mr. Davis stated as long as the Board is satisfied that all the environmental issues have been addressed and determined there is no likelihood of significant impact, failure to check that box is not material. Dr. Mason said he would like to move to approve the application and move on. Mr. Reader said she would like to give Mr. Funicello the opportunity to speak, and narrow down the material issues in his letter. Ms. Reader said if her memory is correct about the change in the law, then one of the paragraphs becomes immaterial. Mr. Funicello stated the reason that was included in his letter is because the Town of Mamaroneck has recognized the importance of this particular drainage system. He stated that Dr. Mason has been one of the most important individuals in the Town to recognize the importance of this drainage system, the Sheldrake designated as the Leatherstocking/Sheldrake area. The reason it is important is because flooding occurs in the Sheldrake. If wetlands or areas that serve as water absorption or reservoir areas in that drainage are filled,something is being done that is not good for the Town of Mamaroneck. It is important to know that critical environmental area exists. This is a Class I Wetlands in the Town of Mamaroneck, and designated in the Wetlands Ordinance. Mr. Funicello does not know if this specific issue and the standard of review necessary to grant a permit for a Class I Wetlands has been explicitly addressed. Mr. Davis asked Mr. Funicello to focus on why this is a Class I Wetlands. Mr. Funicello said he believes it is a Class I Wetlands because it is stated that all mapped wetlands are Class I Wetlands. Maybe the entire property is not a Class I Wetlands, but since this application does not have a map properly prepared showing the wetland mapped by the proper procedure, the Board does not know where the wetland is. On the map the entire lot is designated as a Class I Wetlands and the house is being put on a Class I Wetlands. A discussion ensued regarding the reference being made to the wetlands map. Mr. Funicello said he is referring to the Wetlands Ordinance. Any mapped wetland is a Class I wetland under the Ordinance. That was never done in this instance, so it is not known where the wetland is on this property and it is not limited to the Sheldrake River bed itself. Mr. Davis asked if Mr. Funicello is referring to the first paragraph of the Dru Associates letter,which was verified. Mr. Papazian stated he has a problem with the argument of Mr. Weisfeld's attorney. This is not a public hearing to entertain this type of material. The Board should make a determination whether he should be allowed to speak on this and if he should start speaking on it the applicant is going to have to reply to it. The applicant has not had time to review the material,just as the Board has not had time to review the material. A determination has to be made to approve the application as it is submitted or not approve the application. Ms. Reader asked the Board's feelings on whether or not they want to hear any more information. Ms. Harrington said she did not want to hear any more information. Dr. Mason stated he is satisfied with the material presented at the last meeting and if given the opportunity would move to approve the permit application. Ms. Aisen said she has not had time to determine whether there is substance in Mr.Funicello's application. Mr. Papazian would like to hear one way or another approval of the permit application the way it is submitted. Mr. Papazian does not wish to obtain any more material. Planning Board April 8, 1998 Page 17 Mr. Darsky would like to hear more material. If there wasn't the June 15, 1998 window,maybe the other Board members would like to hear more as well. A short recess should be taken to open the window a little wider, it might possibly change the vote. Mr. Ben-Simon said he has spent quite a bit of money because Mr. Weisfeld refused to discuss the issue with him, face to face, in January. Mr. Scher said the applicant is trying to build a house to sell to someone who will live there. Any further delays will cause harm and financial hardship. Ms. Reader asked Mr. Capicotto if there is compatibility in the New York Rules and Regulations and asked if the standards used are different standards for wetlands. Mr. Capicotto said no, he went by the Town Code. Mr. Davis said the question of standard is a complicated question and expanded on that issue. Ms. Reader said if she understands Mr. Funicello, he is saying the whole property is wetlands. Mr. Funicello said he has to say it is a wetlands because there is no map further defining it. Mr. Davis said there is more evidence on the record than that map. Mr. Davis said Mr. Capicotto applied the compatibility standard and Mr. Funicello is saying that that is inadequate. Mr. Funicello is saying that there is a balancing process in addition because of how this is construed a wetlands and Mr. Funicello believes it has not been applied and could not be met. Ms. Reader asked if the standard Mr. Capicotto applied is a viable standard. Mr. Davis said based on the records the Board has before it in the public hearing, the standard applied was correct. Mr. Davis said he has not had the opportunity to absorb the proposed new information. Ms. Reader said based upon that, the Board should work with what it has, as the additional information is not appropriate at this time. Mr. Scher said the infiltration system does not work. Mr. Funicello said it is improper for Mr. Scher to say that. A heated discussion ensued, with Mr. Davis instructing both Mr. Scher and Mr. Funicello to stop the bickering. Ms. Reader stated Malcolm Pirnie has reviewed the proposed application and applied the standards needed for this project, which Mr. Capicotto verified. Mr. Senor said tests were performed as stated on the drawing. Also there was discussion about the ground water and why the dry well was placed in the area it was placed, because high ground water was encountered in other areas. Ms. Reader stated that is why the paving stones were placed on the pool deck. Ms. Senor said the high ground water was addressed at the last meeting. Ms. Reader stated there are two individuals that would like to hear more and needed more time, Mr. Darsky and Ms. Aisen. Planning Board April 8, 1998 Page 18 Ms. Aisen said she does not feel able to address this issue. If there is something substantive, the Board should address it regardless of the time and inconvenience to the original applicant. If there is nothing substantive, Ms. Aisen would like the Board to move forward and allow the house to be built. Mr. Scher stated the Town's consulting engineer confirms the submitted plan is proper. Ms. Reader said with what Mr. Capicotto has indicated:she feels the use of the storm drainage system, the various dispersion systems is appropriate, the project is not inconsistent with the type of dispersion system the Board has permitted throughout the Town, citing various sites, and is having a difficult time being persuaded that this particular soil on this piece of property is different from the soil on these other parcels that are a part of the same flood plain. Ms. Reader stated she, along with the other three members of the Board, is ready to move forward with what has already been heard. Ms. Reader said the issue about the bridge in Mr. Funicello's letter is an issue for the Building Department and not the Planning Board. After some discussion amongst Board members about taking a ten minute break to review this evening's submission, Mr. Davis said there is a balance between what is a public hearing and what is a request to open a public hearing. It would be improper for the Board to listen to Mr. Funicello read his letter and turn down the application this evening based on the content of the material. It would not be improper this evening for the Board to consider whether it was necessary to open a public hearing. Mr. Davis' concern is because of the last minute submission of this material it is not clear, and the Board has to be very careful. Mr. Davis is not sure how reading it quickly and listening to a short presentation advances everybody. It may require judgment from the consulting engineer,judgment from Mr. Davis on questions that were not presented this evening that Mr. Davis has not had a chance to think about. Ms. Reader said the Board will rely upon what is in the record, to proceed and entertain the question whether to approve the Freshwater Wetlands Permit. Mr.Davis said he believes the consulting engineer has reaffirmed his determination that the records support the findings required to move in that direction. Ms. Reader said it is her understanding that Mr. Capicotto has considered the factors that were required to be considered given the type of property it is and where it is, has reviewed both environmentally and based upon the reliance of wetlands experts within Malcolm Pirnie Ms. Reader is prepared to go ahead. Ms. Reader asked Mr. Kaplan if all the things in his letter have been addressed. Mr. Kaplan said everything has been addressed except the blanks in the environmental assessment form, even though he does not know how material those items are. Ms. Aisen said the attorney stated those items were not material, which Mr. Davis responded to. Mr. Kaplan said the disposal of waste was not answered. Ms. Reader said that waste was addressed at the last meeting, but asked Mr. Senor to again address it. Mr. Senor said the solid waste gets trucked to White Plains, gets compacted and sent off to Peekskill or Buchanan. Sewage from the drains, etc. go into the County Sewer manhole and processed in the Mamaroneck Sewage Treatment plant. A discussion ensued regarding the answer noted in the EAF, C16, with Ms. Reader stating that the construction waste will be carted to Peekskill. Ms. Reader asked Mr. Kaplan if there was anything else. Mr. Kaplan stated it was said there will be no blasting, and he had nothing else to say. Planning Board April 8, 1998 Page 19 Ms. Reader asked if there were any other questions from the Board. On a motion made by Dr. Mason, seconded by Mr. Papazian, the following resolution was APPROVED, 5-1, Mr. Darsky abstained: WHEREAS, Bobby Ben-Simon has applied for a permit pursuant to Mamaroneck Town Code Chapter 114 for the premises located at Lot No. 903.2 Griffen Avenue and known on the Tax Assessment Map of the Town of Mamaroneck as Block 305 Lot 903.2; and WHEREAS, this Planning Board has previously determined that the proposed action is an unlisted action for purposes of SEQRA and, at the meeting held on March 11, 1998, adopted a negative declaration; and WHEREAS, the Consulting Engineer to the Town has submitted written comments and recommendations to the Planning Board regarding this application; and WHEREAS, this Planning Board has determined, pursuant to Mamaroneck Town Code Chapter 114,that the activity proposed is of a minor nature and is compatible pursuant to 6 NYCRR §665.7; and WHEREAS, a Public Hearing pursuant to Mamaroneck Town Code Chapter 114 having been held on March 11, 1998; NOW, THEREFORE, BE IT RESOLVED, that this Board makes finds as follows: 1. The activity proposed is of such a minor nature as not to effect or endanger the balance of systems in a controlled area. In particular, the Board finds that project construction will not take place in the flood plain, bridge abutments are not proposed within the limits of the stream banks, and the proposed construction will take place at the greatest feasible distance from the stream. In addition, the proposed storm water collection and dry well system will result in there being no net increase in runoff from the site,and the applicant has consented to certain requests made by the Board, including the use of paving stones set in sand bedding in appropriate portions of the driveway area, the reduction in length and pitch of the driveway, and the minimization of tree removal. The Board also notes that tree replacement along the brook will assist in replacing the transpiration capacity of trees being removed. 2. The proposed activity will be compatible with the preservation, protection and conservation of the wetland and its benefits, because (A) the proposed activity will have only a minor impact, for the reasons described above, (B) it is the only practical alternative for the site, and (C) it is compatible with the economic and social needs of the community and will not impose an economic or social burden on the community. In support of this finding, the Board notes that the applicant has satisfactorily minimized the creation of impervious surface and that, as confirmed by the Town's Consulting Engineer, there will be no net increase in storm water runoff from the site at the conclusion of construction. Finally, the Board finds that a house of the proposed size is consistent with the character of the surrounding area and appropriate for this parcel, and that the construction of a house on this parcel is the only feasible use of the land, given zoning and surrounding uses. Moreover, since there will be no increase in net runoff, there is no justification for requiring that the house be smaller. 3. The proposed activity will result in no more than insubstantial degradation to, or loss of any part of the wetland because of the minor impact of the activity and the protective conditions imposed by this resolution. 4. The proposed activity will be compatible with the public health and welfare, for the reasons stated above. Planning Board April 8, 1998 Page 20 BE IT FURTHER RESOLVED, that the application of Bobby Ben-Simon for a permit,pursuant to Local Law#7 of 1986, be and it hereby is GRANTED subject to the following terms and conditions: 1. This permit is personal to the applicant and may not be transferred to any other individual, entity or combination thereof; 2. All debris is to be removed prior to the.completion of the project. Construction must be in accordance with the requirements of the Town Flood Damage Prevention Code and the Town Erosion and Sedimentation Control Law. 3. Work involving site preparation shall only take place from Monday through Friday between the hours of 8:30 a.m. and 4:30 p.m. 4. A dry well is proposed adjacent to the bridge, in the driveway, on the house side of the river. If it cannot be installed due to high ground water, the applicant will use a dispersion structure similar to the one on the street side of the river. The applicant will then place an additional dry well elsewhere on the house side of the stream to maintain no net increase in run-off. 5. The number of trees to be planted will be recommended by the Tree Commission and the recommendation will be binding. 6. The permit is approved subject to the revised plan dated April 6, 1998, page 2 of 2. 7. A cash deposit or bond, in an amount to be determined by Malcolm Pirnie, shall be furnished to the Town by the applicant to ensure the satisfactory completion of the project and the rehabilitation of the affected or disturbed area. 8. This permit shall expire upon completion of the proposed activity or one year from the date of its issue, whichever first occurs. NEXT MEETING The next meeting of this Board will be held on May 13, 1998. ADJOURNMENT On a motion made by Ms. Aisen, seconded by Ms. Harrington, the meeting was unanimously adjourned at 10:45 p.m. Marguerite 'Pima, Recording Secretary