Published: November 20, 2008 12:36 pm      

Town attorney will give laws a second look

By MICHELLE MILLER
Staff Writer

OTSEGO — During a Town of Otsego board meeting last Wednesday night, board members voted 3-2 to have their attorney look into some of the town’s current laws with the planning board’s attorney in order to make sure they are being followed properly.

The motion was brought up after hearing concerns during public comment about Edward Walker’s proposed subdivision project on Glimmerhill Lane off Browdy Mountain Road.

Several people have written letters to the planning board expressing their concerns about the project, however; Carol Bradshaw Akin and her sister Marilyn Bradshaw, both of whom own neighboring property, have been the most vocal. During Wednesday night’s meeting, they urged the town board to table Walker’s application until there is a review and possible revisions to town laws and regulations.

Akin and Bradshaw told town board members they were very concerned about Walker’s proposal and wanted to focus on the legal issues that they have brought up to the planning board in the past.

The first issue we want to bring attention to is the land use law section 4.04 regarding tree cutting, said Akin.

Bradshaw reminded board members that they had instructed the planning board to review and suggest revisions to the land use laws in order to address the issue of tree density, but that has not yet been completed. She said because of an `inadequate law,’ the Walker subdivision threatens the Otsego Lake viewshed and the lake itself because of increased run-off from clear-cutting acres of trees.

The existing law, which Walker has agreed to abide by, would allow him to clear-cut a total of 4.8 acres of mountainside overlooking the lake, according to Akin.

``This would have a devastating impact,’’ she said. Earlier in the meeting, Town Supervisor Tom Breiten said the board received a letter from Jane Forbes Clark that also expressed concerns about the possible affects of the proposed project on the lake’s viewshed.

Bradshaw and Akin also expressed concern about Walker’s 1600-foot road, which they do not believe meets town requirements. Bradshaw said the planning board waived the town requirements regarding private streets in 1994, because the road was deemed a driveway to a family compound.

According to a K.W. Bunn Engineering report, the original Walker subdivision was approved by the planning board on Oct. 5, 1993 and was intended to be a family-owned development, with possible future subdivision, primarily for use by Walker family members. However, according to Bradshaw, Walker’s brother, Steven, sold his home. She said Walker’s proposal would add three more houses to the existing road and could ``in no way be considered a driveway’’ anymore.

``Clearly Mr. Walker’s existing private road does not even come close to being in accordance with town regulations, and so access to the new houses would be illegal under a section of the town’s subdivision law,’’ said Bradshaw. ``However, Mr. Ferrari, the planning board attorney, has advised the planning board that he foresaw no problems for the board on the road, explaining that `this is how these projects get done in rural areas.’’

Bradshaw said she found his attitude appalling and requested the town board clarify, for the planning board, section 4.5 e of the town subdivision regulations regarding roads. She also asked the town board to instruct the planning board to apply the law as written.

Bradshaw and Akin told the town board that there is a need for strict and definitive regulations in the Town of Otsego for Historically Designated Otsego Lake and its ``valuable viewshed.’’

They said the decision to have the State Historical Preservation Office give Otsego Lake and its surrounding area, including Cooperstown, the historical designation several years ago represented a desire to protect the `rare’ and `beautiful’ lake area from the fate that has befallen most other lakes in New York state, primarily over development. Akin said the Town of Otsego has no existing laws or regulations that would protect the land around the lake. She said the Village of Cooperstown has strict rules and regulations that have prevented `inappropriate’ development from changing the historical character of the village and she believes Otsego should as well.

The goals stated in the town’s comprehensive plan adopted earlier this year specifically refer to protecting viewsheds and maintaining the historical, natural community and rural character of the town, said Akin.

Akin brought an ethical issue to the board’s attention. Akin said two planning board members, John Phillips and Joe Galati, have had business dealings with Walker and she feels this issue has not been adequately addressed by the planning board and hopes it will be before a vote on the Walker project.

According to Akin, neither board member will recuse themselves from voting on Walker’s application even after Planning Board Chairman Paul Lord asked Galati to do so last spring during a meeting in which he refused.

It would be unethical for Galati to vote on Walker’s application because if it is approved, it would benefit his own plans for a major subdivision, which is currently tabled, said Akin.

Akin said she drove over 200 miles to attend the planning board meeting Tuesday night, but Walker was a no show. According to the October 7 meeting minutes, Walker said he would return in November to discuss the progress on the Department of Conservation’s (DEC) and State Historical Preservation Offices (SHPO) requirements, which included a visual simulation.

Breiten said he did not feel like the town board was intervening into the planning board’s business.

Rather, he said he feels it is more prudent to prevent an Article 78 and have the board’s attorney who is

``well versed in these issues’’ review the laws ``just as a second pair of eyes.’’ Breiten said the board is not talking about changing the laws.

``We just want to see that the law is being properly put in place and I believe that is all the constituents are asking us to do,’’ he said. ``We have the resources sitting on the table, why not use them.’’

Councilman John Schallert said two years ago, when the board proposed the conservation subdivision, members were promoting things such as cluster housing, fewer curb cuts and private roads.

``Then we were saying, `here you can take your 100 acres, put 22 houses on eight acres,’’ he said. ``We can’t have it both ways.’’

Schallert said he did not feel it would be right to ``ambush’’ Walker now that he has spent a lot of money and done, as far as he can tell, everything he has had to do to comply for his project up to this point.

``It would not be right to pull the rug out from underneath his feet,’’ he said.

Planning board member John Philips, who was at the town board meeting, said his biggest concern is that other constituents will bring matters to the town board when not happy with planning board decisions. When the town board intervenes with planning board issues we are at a slippery slope, said Breiten. However, he said he feels it is a good idea to have another set of eyes look at the laws to make sure they are being followed. Akin said she and her sister were very pleased about the decision to have the town board’s attorney speak to the planning board’s attorney to ``clarify’’ the regulations regarding town roads, and discuss the fact that Walker’s current road does not conform to the town’s regulations and is currently illegal.

``We sincerely hope the board will urge the planning board to work with them on regulations to protect the historically designated Otsego Lake viewshed,’’ she added.