1997 21st Regular Meeting of the Town Board of the Town of Orchard Park, Erie County, State of New York

A Regular Meeting of the Town Board of the Town of Orchard Park, Erie County New York, was held at the Municipal Building, S4295 South Buffalo Street, Orchard Park, New York on the 5th day of November 1997 at 8:00 P.M., (local time), and the Pledge of Allegiance was rendered.

The meeting was called to order by the Supervisor and there were

PRESENT AT ROLL CALL: Dennis J. Mill Supervisor

John J. Mills Councilman

Paul D. Barnas Councilman

David M. Buyer Councilman

Nancy W. Ackerman Councilwoman

Janis A. Colarusso Town Clerk

Leonard Berkowitz Town Attorney

Joseph Campion Building Inspector

Ronald A. Geitter Superintendent of Highways

Robert C. Henning Police Chief

Michael R. Merritt Town Engineer

1) THE FOLLOWING RESOLUTION WAS OFFERED BY COUNCILMAN BARNAS, WHO MOVED ITS ADOPTION, SECONDED BY COUNCILWOMAN ACKERMAN, TO WIT:

RESOLVED, that the minutes of the regular meeting of the Town Board, held on October 15, 1997, as presented by the Town Clerk, are hereby approved, and be it further

RESOLVED, that the reading of these minutes be dispensed with as each member of the Town Board has previously received copies thereof

THE RESOLUTION WAS UNANIMOUSLY ADOPTED.

PUBLIC HEARING #1

At 8:00 P.M., (local time), the Supervisor called for the Public Hearing to hear all interested parties for or against the adoption of an amendment to the Zoning Ordinance of the Town of Orchard Park, which amendment provides as follows:

To rezone vacant land from B-1 to B-1 Special Exception Use for a part of the Easterly Outparcel of the Quaker Crossing Retail Center, as petitioned by Gerald Buchheit, Jr.

Affidavits of Publication and Posting of the Legal Notice of the Public Hearing were presented, read aloud and filed with the Town Board by the Town Clerk. The affidavit is entered into and attached to these minutes.

Town Attorney Leonard Berkowitz explained the use that this parcel is to be put to, is a special exception use and therefore requires special treatment of this Board.

PROPONENTS:

Robert Walsh, Attorney for the developers, gave a brief description of the project that was being developed for two (2) family style restaurants. This is a continuation of the development of Quaker Crossing. This is an outparcel to the main project and will be fronting closer to Milestrip Road and is the easternly outparcel. Arrangements have not been finalized at this point.

Debbie Patterson asked about the other business commitments, such as the book store. Supervisor Mill explained that those were on a different parcel from this particular one.

OPPONENTS:

Marvin Ashburn stated that with so many empty buildings already in the area, we don’t need the possibility of any more. There needs to be confirmation from those businesses allegedly going into the Quaker Crossing Retail Center before we put up any more buildings.

2) THE FOLLOWING RESOLUTION WAS OFFERED BY COUNCILMAN BARNAS, WHO MOVED ITS ADOPTION, SECONDED BY COUNCILWOMAN ACKERMAN, TO WIT:

RESOLVED, that the Public Hearing in the matter of rezoning from B-1 to B-1 Special Exception Use for the purpose of two restaurants is hereby closed at 8:07 P.M., (local time).

THE RESOLUTION WAS UNANIMOUSLY ADOPTED.

3) THE FOLLOWING RESOLUTION WAS OFFERED BY COUNCILMAN BARNAS, WHO MOVED ITS ADOPTION, SECONDED BY COUNCILWOMAN ACKERMAN, TO WIT;

RESOLVED, that the Town Board is hereby authorized to approve the request to rezone vacant land from B-1 to B-1 Special Exception Use for a part of the Easterly Outparcel of the Quaker Crossing Retail Center.

Before the vote was taken, Councilman Buyer asked Attorney Walsh how many restaurants are we talking about with regards to a letter dated, 11/5/97, about a westerly portion for restaurants? Mr. Walsh responded that this was not known at this time. Councilman Mills wanted to know if Mr. Walsh would have a problem with this resolution hinging upon a firm commitment from the restaurants? Mr. Walsh responded that we won’t need the special exception use if we don’t have the restaurants.

Dennis J Mill Aye

John J Mills Nay

Paul D Barnas Aye

David M Buyer Nay

Nancy W Ackerman Aye

THE RESOLUTION WAS DULY ADOPTED.

PUBLIC HEARING #2

At 8:00 P.M., (local time), the Supervisor called for the public hearing for citizens input regarding the use of Federal Community Development Funds in the Town of Orchard Park.

At this time Town Engineer Michael Merritt gave a brief overview of the program and projects selected for this year.

Mr. Merritt explained that the Town of Orchard Park belongs to a consortium of communities. There are 34 municipalities, villages, towns and cities that belong to the Erie County Consortium for the Community Development Block Grant Program.

This year the County will receive from the Federal Government, $900,000.00. Each community is allowed to submit up to three (3) applications with a $90,000.00 cap on any particular project. In order to qualify for HUD/CDBG Funding, the project has to fall into one of three (3) categories: I. Benefit low to moderate income persons. II. Correct slums and blight and III. Meet an urgent community need. Category I (income) requires a certain percentage of the residents in a specific targeted area be at or below the criteria of an income eligibility schedule. Based on the 1990 U.S. Census, the census tract shows the area north of Rt. 20 and west of Rt. 219 as the designated target area for low to moderate income levels. There are no areas in the Town that fit Category II.

There have been seven projects identified which qualify for funding and are concentrated in the northwest area of Town.

At this time the Supervisor called for any public input:

Thomas Glenn, 5475 Lake Avenue: Asked questions concerning the California/Lake Ditch Rehab.

Thomas Whalen, 204 Stepping Stone Lane: Asked about the tributary behind Nottingham Village and the spring run-off. Town Engineer Merritt explained that this area does not qualify for the CDBG funding. The Town Board has funded this project for next year.

In response to questions regarding who pays the difference when a project costs more than the $90,000.00 the Supervisor explained that this would come out of the taxes.

Mr. Merritt stated it will be necessary to obtain easements as the ditch rehab project progresses in reply to questions concerning what the State DOT may have acquired in easements while working on the 219.

4) THE FOLLOWING RESOLUTION WAS OFFERED BY COUNCILMAN BARNAS, WHO MOVED ITS ADOPTION, SECONDED BY COUNCILWOMAN ACKERMAN, TO WIT:

RESOLVED, that the Public Hearing in the matter of the use of Federal Community Development Funds is hereby closed at 8:22 P.M., (local time).

THE RESOLUTION WAS UNANIMOUSLY ADOPTED.

5) THE FOLLOWING RESOLUTION WAS OFFERED BY SUPERVISOR MILL, WHO MOVED ITS ADOPTION, SECONDED BY COUNCILWOMAN ACKERMAN, TO WIT:

RESOLVED, that the Town Board be and is hereby authorizing the Supervisor to sign and submit the application for the 1998-1999 Community Development Block Grant Funds listed in order of priority: 1) Summit Avenue Reconstruction Project in the amount of $ 90,000.00, and 2) California Lake Ditch Rehabilitation in the amount of $ 90,000.00, and be it further

RESOLVED, that the Town Board be and is hereby authorizing the Supervisor to co-sign the application for the Rural Transit Service Program in the amount of $ 90,000.00, as our third priority.

THE RESOLUTION WAS UNANIMOUSLY ADOPTED.

At this time, a motion was offered by Councilman Mills to remove the Planned Unit Development and Cluster Development from the Town Code of Ordinances. The motion died for lack of a second. There was discussion amongst the Board Members and the following motion was then made .....

Old Business #1 - Planned Unit Development (PUD) Cluster Development Decision.

6) THE FOLLOWING RESOLUTION WAS OFFERED BY COUNCILWOMAN ACKERMAN, WHO MOVED ITS ADOPTION, SECONDED BY COUNCILMAN BUYER, TO WIT;

RESOLVED, that the Town Board does hereby direct the Town Attorney to establish a written Local Law to cause a moratorium to be placed upon the development of Planned Unit Development and Cluster Development for a period of six (6) months, and be it further

RESOLVED, that the Town Board will be scheduling a Public Hearing on December 3, 1997 for a Local Law for the purpose of establishing a six month moratorium on said Planned Unit Development and Cluster Development, and be it further

Dennis J. Mill Aye

John J. Mills Nay

Paul D. Barnas Aye

David M. Buyer Aye

Nancy W. Ackerman Aye

THE RESOLUTION WAS DULY ADOPTED.

Old Business #2 - Local Law 1997 #2: Real Property Tax Law.

7) THE FOLLOWING RESOLUTION WAS OFFERED BY SUPERVISOR MILL, WHO MOVED ITS ADOPTION, SECONDED BY COUNCILMAN BARNAS, TO WIT:

WHEREAS, a public hearing was held on the 1st day of October, 1997 in the matter of Local Law #2 for 1997 providing that Section 581(a) of the Real Property Tax Law and Section 339-y of the Real Property Tax Law not apply to converted condominium units

NOW, THEREFORE, be it

RESOLVED, that the Town Board is hereby authorized to adopt Local Law #2-1997 which provides as follows:

Pursuant to Chapter 293 of the Laws of 1997, the Town Board of Orchard Park, New York, hereby adopts the following Local Law: 1) Section 581(a) of the Real Property Tax and Section 339-y of the Real Property Law shall not apply to converted condominium units, and 2) This Law shall take effect immediately.

THE RESOLUTION WAS UNANIMOUSLY ADOPTED.

Old Business #3 - North Benzing Road Reconstruction Project Change Order #1.

8) THE FOLLOWING RESOLUTION WAS OFFERED BY COUNCILMAN BARNAS, WHO MOVED ITS ADOPTION, SECONDED BY COUNCILWOMAN ACKERMAN, TO WIT:

WHEREAS, culverts installed by the New York State Department of Transportation as part of the Southern Expressway project in 1970 were found to be in very good condition except for the inverts, and

WHEREAS, the bottom of two sections of pipes showed early signs of rust and fatigue, and

WHEREAS, in order to extend the life of the culverts, the contractor for the reconstruction of the North Benzing Road project was directed to pave said inverts, and

WHEREAS, said paving work has now been satisfactorily completed

NOW, THEREFORE, be it

RESOLVED, that the Town Board is hereby authorized to approve Change Order #1 to the contract with DiPizio Construction Co., Inc. for the reconstruction of North Benzing Road in the amount of an increase of $3,824.69 bringing the total contract amount to $490,221.81, as recommended by the Town Engineer.

THE RESOLUTION WAS UNANIMOUSLY ADOPTED.

New Business #1 - Recreation Department Fall/Winter/Spring Staff Appointments.

9) THE FOLLOWING RESOLUTION WAS OFFERED BY COUNCILMAN BARNAS, WHO MOVED ITS ADOPTION, SECONDED BY COUNCILWOMAN ACKERMAN, TO WIT:

RESOLVED, that the Town Board is hereby authorized to approve the following resident appointments to the Fall/Winter/Spring Recreation Staff, as recommended by the Recreation Director:

Karen Heavey 145 Chauncey Sub/Grd $5.35/hr

Laura Besanceney 73 Briar Hill Dir $5.35/hr

Catherine Cherry-Myers 6405 Ward Road Sub/Grd $5.35/hr

Phil Cook Beverly Dr., Eden Grd $5.35/hr

Lisa Jolls 6362 Armor Road Sub/Grd $5.35/hr

Christine Bone 14 Concord Dir $5.35/hr

Piper Ware 6362 Armor Road Dir $5.35/hr

THE RESOLUTION WAS UNANIMOUSLY ADOPTED.

New Business #2 (not on agenda) - Quaker Crossing, Westerly Outparcel.

10) THE FOLLOWING RESOLUTION WAS OFFERED BY SUPERVISOR MILL, WHO MOVED ITS ADOPTION, SECONDED BY COUNCILMAN BARNAS, TO WIT:

RESOLVED, that the Town Board is hereby authorized to refer to the Planning Board and Conservation Board, the request from Robert G. Walsh, Esq. for a building permit for a special exception use for the Westerly Outparcel of the Quaker Crossing Retail Center, zoned B-1, for the development of restaurants, and be it further

RESOLVED, that the Town Board is hereby authorized to schedule a public hearing on December 3, 1997 at 8:00 pm (local time) to rezone from B-1 to B-1 Special Exception Use for the Westerly Outparcel of the Quaker Crossing Retail Center for the development of restaurants, and be it further

RESOLVED, that the Town Clerk is hereby directed to publish due notice thereof.

Dennis J. Mill Aye

John J. Mills Aye

Paul D. Barnas Aye

David M. Buyer Nay

Nancy W. Ackerman Aye

THE RESOLUTION WAS DULY ADOPTED.

New Business #3 (not on agenda) - Craig Lipp:Pole Barn on Transit Road.

11) THE FOLLOWING RESOLUTION WAS OFFERED BY COUNCILMAN BARNAS, WHO MOVED ITS ADOPTION, SECONDED BY COUNCILMAN MILLS, TO WIT:

RESOLVED, that the Town Board is hereby authorized to approve the request of Craig D. Lipp, for a building permit to construct a 30' x 64' pole barn on his property on Transit Road prior to the construction of the main residence with the stipulation that a $1,200.00 bond be posted to guarantee construction of the residence this spring (April 1998).

THE RESOLUTION WAS UNANIMOUSLY ADOPTED.

ELECTED OFFICIALS & DEPARTMENT HEADS

12) THE FOLLOWING RESOLUTION WAS OFFERED BY SUPERVISOR MILL, WHO MOVED ITS ADOPTION, SECONDED BY COUNCILMAN BARNAS, TO WIT:

RESOLVED, that the Town Board does hereby authorize the following budget transfers

$ 200.00 From: B.8020.456 (Professional Services)

To: B.8020.450 (Publishing)

As recommended by the Planning Board

$ 1,000.00 From: A.1450.445 (Machine Renovations)

To: A.1410.460 (Codification)

As recommended by the Town Clerk

$ 150.00 From: A.3510.413 (Travel & Conference)

To: A.3510.445 (Vehicle maintenance)

$ 250.00 From: A.3510.419 (Other Expenses)

To: A.3510.445 (Vehicle maintenance)

As recommended by Animal Control

THE RESOLUTION WAS UNANIMOUSLY ADOPTED.

13) THE FOLLOWING RESOLUTION WAS OFFERED BY COUNCILMAN BUYER, WHO MOVED ITS ADOPTION, SECONDED BY COUNCILMAN BARNAS, TO WIT:

WHEREAS, we are in receipt of a request from William H. Prentice, Inc for finalization of the furniture contract for the Orchard Park Municipal Center, completed in 1991, and

WHEREAS, the capital funds account for this project has been kept open due to a dispute, which has now been settled, regarding the amount of the final change order

NOW, THEREFORE, be it

RESOLVED, that the Town Board is hereby authorized to approve the Final Change Order to the Orchard Park Municipal Center Project - Contract F with William H. Prentice, Inc. in the amount of an increase of $55.06, and be it further

RESOLVED, that the Town Board does hereby authorize final payment and release of retention in the amount of $17,307.54 to William H Prentice, Inc., as recommended by the Town Engineer.

THE RESOLUTION WAS UNANIMOUSLY ADOPTED.

14) THE FOLLOWING RESOLUTION WAS OFFERED BY COUNCILWOMAN ACKERMAN, WHO MOVED ITS ADOPTION, SECONDED BY COUNCILMAN BUYER, TO WIT:

WHEREAS, final inspection of the extension Mid County Drive, P.I.P. #243, was conducted and all work was found to be in accordance with Town specification, and the required maintenance bond has been received, and

WHEREAS, there remains only minor restoration work within the Milestrip right-of-way along with placement of street signs which is covered under the New York State Dept. of Transportation permit, and so the State authorized the removal of the temporary barricades

NOW, THEREFORE, be it

RESOLVED, that the Town Board is hereby authorized to accept the public improvements constructed in Phase 1 of the Orchard Park Commerce Center under P.I.P. #243, and be it further

RESOLVED, that the Town Board does hereby authorize the Town Clerk to release the $10,000.00 being held in escrow for certain punch list items, as recommended by the Town Engineer.

THE RESOLUTION WAS UNANIMOUSLY ADOPTED.

15) THE FOLLOWING RESOLUTION WAS OFFERED BY COUNCILMAN BARNAS, WHO MOVED ITS ADOPTION, SECONDED BY COUNCILMAN MILLS, TO WIT:

WHEREAS, final inspection was conducted of the public improvements constructed in the Summit at Scherff Subdivision, Phase 2 and all the work has been completed in accordance with Town specifications with the exception of some minor electrical modifications to the sanitary sewer pump station, and

WHEREAS, all of the required legal documents have been received including the maintenance bond, and

WHEREAS, delivery of the trailer mounted generator, which was a requirement of this public improvement permit has not yet been accepted which delays the release of the Performance Security

NOW, THEREFORE, be it

RESOLVED, that the Town Board is hereby authorized to direct the Town Attorney to proceed with the dedication of the public improvements constructed in Phase 2 of the Summit at Scherff Subdivision under P.I.P. 97-04, as recommended by the Town Engineer.

THE RESOLUTION WAS UNANIMOUSLY ADOPTED.

16) THE FOLLOWING RESOLUTION WAS OFFERED BY COUNCILMAN BUYER, WHO MOVED ITS ADOPTION, SECONDED BY COUNCILWOMAN ACKERMAN, TO WIT:

WHEREAS, in order to expedite the design and construction of the proposed Ellis Road Waterline Interconnect Project, Orchard Park Water District #4 x 1, the assistance was sought of R & D Engineering, PC

NOW, THEREFORE, be it

RESOLVED, that the Town Board is hereby authorized to sign an agreement with R & D Engineering, PC, 268 Main Street, Buffalo, NY, to provide engineering services for the proposed Ellis Road Waterline Interconnect Project in Orchard Park Water District #4 x 1 at a cost of $8,600.00, as recommended by the Town Engineer.

THE RESOLUTION WAS UNANIMOUSLY ADOPTED.

17) THE FOLLOWING RESOLUTION WAS OFFERED BY COUNCILMAN BUYER, WHO MOVED ITS ADOPTION, SECONDED BY COUNCILMAN MILLS, TO WIT:

RESOLVED, that the Town Board is hereby authorized to accept the Map, Plan and Report prepared by R & D Engineering, PC for the proposed Ellis Road Waterline Interconnect Project in Orchard Park District #4, Extension 1, and be it further

RESOLVED, that the Town Board is hereby authorized to adopt the Order scheduling a public hearing on November 19, 1997 at 8:00 P.M. (Local time) for the proposed Ellis Road Waterline Interconnect Project in Orchard Park Water District #4, Extension 1 in accordance with Section 202(b) of the Town Law, as recommended by the Town Engineer.

THE RESOLUTION WAS UNANIMOUSLY ADOPTED.

18) THE FOLLOWING RESOLUTION WAS OFFERED BY COUNCILMAN BARNAS, WHO MOVED ITS ADOPTION, SECONDED BY COUNCILMAN MILLS, TO WIT:

RESOLVED, that the Town Board hereby authorizes the approval of all entries on Warrant #21, following auditing by members of the Town Board and in the funds indicated:

$ 100,578.32 General Fund

$ 7,163.88 Part Town Fund

$ 1,786.53 Risk Retention

$ 40,563.05 Highway Funds

$ 68,777.48 Special Districts

$ 70,899.12 Trust & Agency

$ 384,678.50 Capital Fund

THE RESOLUTION WAS UNANIMOUSLY ADOPTED.

19) THE FOLLOWING RESOLUTION WAS OFFERED BY COUNCILMAN BARNAS, WHO MOVED ITS ADOPTION, SECONDED BY COUNCILMAN MILLS, TO WIT.

RESOLVED, that the Town Board is hereby authorized to receive and file the following communication as entered on the agenda: 1) Erie County: Legislature Resolution submitted under Article 25AA of the New York State Agriculture and Markets Law, Section 303.8; 2) State Supreme Court Decision between the AD Enterprises Partnership Vs the Town of Orchard Park involving the “Cluster Development”. The State Supreme Court rules with the Town of Orchard Park.

THE RESOLUTION WAS UNANIMOUSLY ADOPTED.

20) THE FOLLOWING RESOLUTION WAS OFFERED BY COUNCILWOMAN ACKERMAN, WHO MOVED ITS ADOPTION, SECONDED BY COUNCILMAN BARNAS, TO WIT.

RESOLVED, that the Town Board is hereby authorized to receive and file the following reports as entered on the agenda: 1) Building Inspector’s monthly report and building permits for October 1997.

THE RESOLUTION WAS UNANIMOUSLY ADOPTED.

BUSINESS FROM THE FLOOR

Bill Kraus, 6031 Berkley Drive - Had questions regarding the water pressure in the Colony Park area, whether or not the County could be of assistance instead of our going to the cost of this Water Distrust # 4 ext.1 and further, asked who was to be in the new water district extension. Supervisor Mill explained that the County has said they would not assist in a “bulk rate district” (which this is) and no existing agreement. He also pointed out that there is a Map, Plan and Report, that explains the water districts, which may be viewed by the residents prior to the public hearing.

Mike Crashell, 7283 Michael Road - Voiced his concerns regarding the Cluster/PUD Ordinances and complained that this was not taken care of a month ago when it was supposed to come back to the Board.

Debbie Patterson, 5139 Lake Avenue - Commented she heard that there is to be a 64 ft high lighted lighthouse on the Entertainment Center at the Target project with no variances needed. Can’t we have an ordinance governing heights? Mr. Campion, Town Building Inspector, explained the formula for determining the height of a building.

Tom Whalen, 204 Stepping Stone Lane - Pointed out that the turn signals on Milestrip Road for the Quaker Crossing Retail Center are very misleading, if not dangerous. Police Chief Henning responded that he has already talked with the State Dept. of Transportation and they are looking into it.

There being no further business before the Town Board, on motion by Councilman Barnas, seconded by Councilman Mills, the meeting was adjourned at 9:08 P.M., (local time).

UNANIMOUSLY ADOPTED

Respectfully submitted,

Janis A. Colarusso

Town Clerk