A special meeting of the Town Board of the Town of Moreau was held on April 28, 2003 in the Town Office Building, 61 Hudson Street, South Glens Falls, New York for the purpose of discussing the Pallette Mining Permit.

Supervisor Gutheil opened the meeting at 6:25 p.m.

Harry G. Gutheil, Jr. Supervisor

Bob Prendergast Councilman (Arrived at 6:40 p.m.)

Niki Baker Councilwoman

Todd Kusnierz Councilman

Rich Hewlett Councilman

Also Present: Barbara Mose, Deputy Town Clerk; Martin Auffredou, Attorney for the Town;

Mike O’Connor, Attorney for the Applicant; John Caffry, Attorney for the Residents of Old Saratoga Road; Dave and Mary Lou Canavan, Spier Falls Road; Jan Kropp and Charles Rowson, Old Saratoga Road; Robert Kurtz, Sue and Daniel Campagnone, Old Saratoga Road; George Kunemund, Mountain Road; Robert Thompson, Tina and Tim Kays, Steve Smith, Old Saratoga Road; Julie Francis, South Road; Bill Beers, Officer of the Pallette Stone Corporation; Robert Duval III, Old Saratoga Road; Linda Carpenter, Old Saratoga Road; Wade and Jeanne Sherman, Mountain Road; Angela Gibson, 30 Mountain Road; George Terpening, Old Saratoga Road; Jason McCord, Post Star Reporter; June Flodsand, South Road.

Supervisor Gutheil opened the meeting by stating that the only item on the agenda was the Pallette Town Mining Permit Application.

Attorney Auffredou explained that the topic was on the agenda of the regular Board Meetingseveral weeks ago and he was unable to attend, and he was also unavailable this past meeting.

It was decided to have a special meeting devoted specifically to this topic. Attorney O’Connor was present representing Pallette Stone and Attorney Caffry some of the Residents of Old Saratoga Road.

Supervisor Gutheil stated that a lot of the topics had been covered the last meeting and he wished to hear from anyone who had new information.

The following people stated their concerns: Dave Canavan, Julie Francis, Tina Kays, Jan Kropp, Dan Campagnone, Robert Duval, Bob Thompson, George Terpening, June Flodsand, Chuck Rosa, Charles Rowson.

Some of the concerns:

          Hours of operation

Supervisor Gutheil stated that this application had been sent to the Planning Board and they came back without a recommendation.

Attorney Auffredou stated that the Town has an unusual law because there is a separateMining sands and gravel law. This gives the Town Board review authority for permits. These Permits are looked at annually. The Zoning Board is also looking at it from a special use permit standpoint. There is a Zoning special use permit to operate a mine at this particular location and it has been in force since 1998. This special use permit runs with the land. Zoning looks at whether the use is in harmony with the neighborhood. Attorney Auffredou stated that the Town could not be any more restrictive than DEC. Noise control and dust control are two items that the Town can restrict.

Attorney Auffredou stated that it was his understanding that when you have a mine that has been operating, you look at whether a valid DEC permit has been issued and whether or not the mine continues in operation in conformity with that permit, any prior permit and the DEC permit.

Hours of operation, dust control and noise control are items that are looked at. Jurisdiction for the Town is limited especially since there is a past history of operating. This does not mean that for the future something couldn’t be done for zoning. It doesn’t mean that operation at this particular property couldn’t be zoned out. It doesn’t mean that the Town couldn’t do something regarding proposed expansion.

Attorney Michael O’Connor from Little and O’Connor spoke next. He represents the applicant.

Attorney O’Connor stated that a permit had been issued in 1994 to the Town of Wilton. There was a permit issued as a new application by DEC with an environmental review in 1999-2000 to Valente. Attorney O’Connor stated that DEC rules will supersede local rules as far as the operation of the mine. The Zoning Board of Appeals issued a special use permit in 1998. In that resolution it states that a negative declaration was done for purposes of traffic and hours of operation. This was a full SEQR review by that Board in 1998. We are talking about the same operation not an expansion and the life of the mine footprint that was part of that review.

Attorney O’Connor stated that in repermitting, if the impact of that operation has undergoneSEQR review, you are not required or entitled to go back and look at those same issues.

Attorney O’Connor stated that this was complicated because it is the size that determines if a DEC Permit is needed. DEC will contact the executive officer of the Town and any comments given to him by residents would be passed on at that time. This is specific in the Regulations section 23-2711. They also talk about natural barriers and appropriate setbacks. Attorney O’Connor stated that there is a whole procedure set forth in that regulation. If the Chief

Executive Officer has concerns, he informs DEC of these and DEC may incorporate these into the

Permit. If not they have to have a findings. Attorney O’Connor stated that they went to DEC and asked for an assignment of the DEC permit and that assignment was granted.

At the last meeting there were issues as to whether the mine was in violation of the existing DEC permit. A letter has been received by Attorney O’Connor stating that based on an actual inspection of the site by DEC, the mine is not in violation of that permit. Attorney O’Connor stated this is an administrative act by this Board to issue this permit, since Pallette is not talking about an expansion and it has already gone through one and possibly two SEQR reviews on the very issues that the neighbors have raised or tried to raise.

Attorney O’Connor said that he spoke with Steve Barody and he said that Steve had gone down and measured the road and in no place was it under 20’ to 20' 6" wide. Steve told him that he had done some paving in 1988, 1989 and 1990. Steve told him that some of the pavement had broken off the sides, but he does not attribute this to truck traffic. [Amended 5/12/03 jf]

Attorney Caffry spoke next. He reiterated the concerns of the neighbors. Attorney Caffry stated that the permit expired July 1, 2002 and this should be treated as a new application. Two issues that Attorney Caffry responded to were the noise and the SEQR. Attorney Caffry sited from a handout—Noise Analysis of Pallette Mine. Attorney Caffry stated the noise levels of different machinery that would be used for mining. With more than one machine working, this would raise the noise level considerably. Attorney Caffry stated that the noise level would be more than 50 decibels at the property line, which is allowed under the Town code. Attorney Caffry stated that this piece of property was too small to accommodate a mine in this residential area. The problem of backup alarms was also brought up. There are different kinds available, infrared and radar and they only sound when there is something in the way. Attorney Caffry stated that he felt this permit is subject to SEQR because it is a new application.

Jan Kropp read a letter from Richard Salazar stating his opposition to the mine. She also handed out a paper stating her opposition.

Several other residents stated their opposition to the mine.

Supervisor Gutheil asked what the process would be to revoke or suspend a special use permit.

Attorney Auffredou stated that the Board that issued the permit would be the only one that could revoke or suspend the permit—Zoning Board or Planning Board.

Attorney Auffredou stated that he did not think this permit could be treated as a renewal as it has expired.

Councilman Prendergast asked if the Zoning Board of Appeals knew that this was not a renewal of a permit.

Attorney Auffredou stated that he did not know if they knew this.

Supervisor Gutheil asked where the completed SEQR would be.

Councilman Prendergast stated some items that disturbed him:

1. It is 4 years later. Some of the issues that were brought up then may not match the issues that have been addressed today. There are more people involved that live in the area. This is a factor that determines if this is a negative declaration or not.

    2.   He stated that he was familiar with the road. Is this company going to be more      aggressive than the last and if so the road would be a factor.

Councilman Prendergast asked when the SEQR comes into play if ever.

Attorney Auffredou explained that if you have a modification or expansion, SEQR would come into play.

Supervisor Gutheil stated his concerns and stated that the Town needs to build in every protection for the people in the area.

Attorney Caffry stated that he felt a SEQR review was needed, as there were some changes in the laws of the Town since 1998. We now have a noise law and different circumstances that warrants a SEQR review.

There is a seasonal weight limit on the road due to frost.

Attorney Auffredou stated that the Town could regulate the weight on our local highways and local roads.

Attorney Auffredou stated that he had spoken with Joe Patricke and Joe would use the 50 decibels as a standard for enforcing the noise ordinance.

Attorney Caffry asked again about any plans for expansion. Attorney O’Connor stated that his client had no intentions, desires, etc. to expand the mine.

Further discussion followed.

Attorney Auffredou stated that he thought the Town would be well advised to consider this a new application and to take a look at SEQR.

Councilman Prendergast stated that he did not understand why a SEQR would not be done as circumstances have changed. Ten years ago the SEQR may have been correct, but things have changed over the years.

A motion was made by Councilman Prendergast and seconded by Councilwoman Baker to have the Town Board be lead agent in SEQR and for the applicant, Pallette Stone, to bring in a long form EAF with part one completed.

Further discussion followed.

Roll Call Resulted as follows:

Councilman Hewlett Absent

Councilman Prendergast Aye

Councilwoman Baker Aye

Councilman Kusnierz Aye

Supervisor Gutheil Aye

Attorney Auffredou stated that he felt we should try to expedite this as soon as possible.  Supervisor Gutheil suggested having a joint meeting of the Town Board and the Planning Board. The Planning Board could have input, but no authority.

Attorney Auffredou stated that when the SEQR review is being done, all of the pertinent information needs to be available.

A motion was made by Councilman Prendergast and seconded by Councilwoman Baker to adjourn the meeting at 8:35 p.m.

Roll Call resulted as follows:

Councilman Prendergast Aye

Councilwoman Baker Aye

Councilman Kusnierz Aye

Supervisor Gutheil Aye

Councilman Hewlett Absent

Meeting adjourned.

Respectfully submitted,

Barbara Mose

Deputy Town Clerk