Board of Trustees

Village of Baxter Estates

315 Main Street, Port Washington, New York

September 8, 2011

7:30 PM


Present: Mayor Frederick E. Nicholson

Trustee Charles Comer

Trustee Douglas Baldwin

Trustee Alice M. Peckelis

Trustee Nora Haagenson

Attorney Andrew Luskin

Village Clerk Yvonne Whitcomb

Treasurer Laurence Tuck


Absent: Village Attorney Christopher Prior


Also present: Anthony Demelas, Nina Avino, Janet Demelas, Phil Daley



Open Regular Meeting 7:30p.m.


Mayor Nicholson opened the meeting. Trustee Peckelis led the Pledge of Allegiance to the flag.


  1. Old Business


  1. Demelas-52 Sandy Hollow Road


Nina Avino, Esq., on behalf of Anthony Demelas, owner of the single-family home at 52 Sandy Hollow Road within the Village, addressed the Board with respect to continuing issues raised by Mr. Demelas concerning what he contends are dangerous conditions near the rear of his property.


Ms. Avino referred to materials prepared on behalf of Mr. Demelas by Frank Ferrentello, Licensed Land Surveyor, supporting the Demelas contention that a “gore” exists immediately to the south of the Demelas property, intervening between the rear (southerly) property line of the Demelas parcel and the side (northerly) property line of the premises known as 2 Sandy Hollow Lane, owned by the Lillys. The Village Attorney explained that a gore can be considered an “orphaned” sliver of land inadvertently created when subdivisions of larger parcels were accomplished without precise delineations of metes and bounds descriptions. Unless the metes and bounds description of the subdivided parcels line up exactly, so that abutting parcels have shared property lines, gores can be created. Ordinarily ownership of such “gores” reverts to the municipality in which the gore is situated. To the extent that a gore exists between the Demelas property and the Lilly property, it is possible that the Village would be deemed the owner thereof.


The area encompassing a portion of the rear yard of Demelas, and the northerly portion of the rear yard of Lilly, including the portion that Demelas alleges is a gore, is steeply inclined, rising from a low point in the rear yard of the Demelas property to a high point on the Lilly property. There is vegetation in that area, including trees, two of which are large trees which are leaning toward the Demelas home and posing what Demelas claims is a significant and imminent dangerous condition. The area in question also contains a retaining wall supporting the Lilly property, the condition of which also is the subject of some concern by Demelas.


The Board notes that previous allegations by Demelas of the existence of a gore led the Village, in July 2010, to direct the Village Attorney to investigate the allegation. The Board notes that, at that time, the Village Attorney submitted to a title company relevant documentation that the Village had received from Mr. Demelas and from Mr. Lilly. The title company’s counsel concluded at that time that the materials did not support the existence of a gore, and the Village relayed that conclusion to both Demelas and Lilly.


The Board finds that the introduction of the new materials from Mr. Ferrentello has renewed the issue of whether a gore exists. The Village Attorney advised the Board that a fresh analysis must be made of the new materials in order to provide a reasoned evaluation as to whether the new materials alter the conclusion previously reached, based upon documents then analyzed, that no gore exists.


The Board observes that the two large trees of which Demelas complains are situated in a steep embankment, looming over the Demelas rear yard and home, leaning in what appears to be an insecure manner, which, according to Demelas, is becoming more precarious with time. The recent Tropical Storm Irene, followed by successive days of heavy rain from an unrelated storm, would also appear to have compromised the stability of the soil embankment in which the trees’ roots sit.


The Village Building Inspector, in his August 31, 2011 report on the Demelas situation, which preceded several more successive days of rain, advised the Board that he “inspected trees [on August 31, 2011] and only luck kept then up during the Hurricane/Tropical Storm [on August 27-28, 2011].” He urged that the two trees be removed as soon as possible.


The Board finds that the two trees warrant prompt remedial action in order to avert potential injury and/or property damage, but an analysis of the competing claims as to who owns the property upon which the trees exist cannot be completed within the necessary time frame. The claim has been made, with new supporting documentation, and the possibility exists, that the Village owns the land on which the trees exist. The dangerous condition of the trees has been made known to the Village not only by the affected neighbors, but also by the Village Building Inspector.


The Board finds that the need to take immediate action in the absence of a definitive determination as to who owns the property in order to avoid potential personal injury and property damage, particularly in light of recent severe weather, of which more can be anticipated at this time of year, warrants an expenditure by the Village to remove the two trees in question, but to leave the stumps in place so as not to exacerbate the condition of the retaining wall. After discussion, upon motion duly made, seconded and unanimously carried, it was


RESOLVED, that the Village be and it hereby is, authorized to expend an amount not to exceed $2,000 to cut down the two large trees in the vicinity of the rear (southerly) property line of Demelas at 52 Sandy Hollow Road, and the side (northerly) property line of Lilly, at 2 Sandy Hollow Lane; provided, that (i) the owners of the two parcels consent to the Village or its agents or contractors going upon their respective parcels to accomplish the tree removal, and acknowledge that the Village does not agree that the gore exists or that it owns the gore; (ii) the trees are cut down so as to leave the stumps to the extent required to avoid compromising the retaining wall in close proximity to those trees; (iii) the abutting property owners release the Village from any liability arising out of the work done to remove said trees, except to the extent of gross negligence or willful misconduct, and (iv) the Village Attorney prepare written instruments to be signed by both property owners to memorialize the foregoing.


The Board then directed the Village Attorney to investigate the renewed claims that a gore exists and to advise the Board as to his findings at an upcoming meeting.



  1. Pickow-7A Locust Avenue


The Board then noted that the Village Attorney, at the Board’s direction had prepared draft resolutions for the Application of the Pickow Family Trust, Address: 7-A Locust Avenue, for Partitioning Approval, for which the Board, in its capacity as Village Planning Board, conducted a public hearing at its June 2011 meeting. After discussion, upon motion duly made, seconded and unanimously ­­­­carried, the Board:






DESIGNATION AS LEAD AGENCY FOR

ENVIRONMENTAL REVIEW AND NEGATIVE DECLARATION


RESOLVED:


WHEREAS, the Planning Board of the Village of Baxter Estates (the “Planning Board”) has received the application of The Pickow Family Trust (the “Applicant”), as owner of the premises located in a Residence A zoning district of the Village and known 7-A Locust Avenue, Port Washington, New York, also known as Section 5, Block 10, Lots 212 and 225 on the Nassau County Land and Tax Map (the “Subject Premises”), to partition the Subject Premises into two separate building lots for purposes of the Village Zoning Code, where the existing Subject Premises comprise 34,753 square feet, and are improved with a single family home and certain accessory structures, so that the existing building will be retained on one of the lots to be created, comprised of approximately 26,149 square feet, while a separate un-improved buildable parcel, comprised of approximately 8,603 square feet, will be created;


WHEREAS, the Planning Board has conducted a public hearing with respect to said application, and has reviewed all materials submitted in connection with the application, as well as all materials submitted by, and testimony received from, persons in support of and in opposition to the application; and


WHEREAS, the application constitutes an “unlisted action” for purposes of the New York State Environmental Quality Review Act (“SEQRA”), and the rules and regulations promulgated thereunder, requiring that a determination be made by the Planning Board with respect to the environmental significance of the application, if same were to be approved, before the Planning Board may consider the substance of the Application,


NOW, THEREFORE, the Planning Board hereby (i) designates itself as lead agency under SEQRA with respect to the environmental quality review of the Application, and (ii) having conducted an “uncoordinated” review under SEQRA, determines, based upon the materials, including a Short Environmental Assessment Form prepared by the Applicant, submitted and testimony received at the Public Hearing, that the proposed partitioning, which will create the possibility of one additional single family home in a secluded and lightly traveled area of the Village, is not likely to have a significant adverse impact upon the environment, and so the Planning Board adopts a negative declaration with respect to the Application under SEQRA and the rules and regulations promulgated thereunder.


After further discussion, upon duly made, seconded and unanimously carried, the Board:


RESOLVED,


WHEREAS, the Planning Board has considered the application of The Pickow Family Trust (the “Applicant”), as owner of the premises known as 7-A Locust Avenue, Port Washington, New York, also known as Section 5, Block 10, Lots 212 and 225 on the Nassau County Land and Tax Map (the “Subject Premises”), to partition the Subject Premises into two separate building lots for purposes of the Village Zoning Code, where the existing Subject Premises comprise 34,753 square feet, and are improved with a single family home and certain accessory structures, so that the existing buildings will be retained on one of the lots to be created, comprised of approximately 26,149 square feet, which is currently identified as Tax Lot 225, and also on the Applicant’s submissions as Parcel “A,” while a separate unimproved buildable parcel, comprised of approximately 8,603 square feet, which is currently identified as Tax Lot 212, and also identified in the Applicant’s submissions as Parcel “B,” will be created;


WHEREAS, the Planning Board has considered the application and the partitioning map and all statements and data submitted to the Planning Board with respect to them;


WHEREAS, the Planning Board has designated itself as lead agency under the New York State Environmental Quality Review Act with respect to the environmental review of this unlisted action, determined that the implementation of it is not likely to have a significant adverse impact on the environment and adopted a negative declaration with respect to it;


WHEREAS, the members of the Planning Board have inspected the Subject Premises and the surrounding area;


WHEREAS, a public hearing was held with respect to the application and partitioning map and all people present at the hearing were heard or were given an opportunity to be heard;



NOW, THEREFORE, THE BOARD DETERMINES AS FOLLOWS:


  1. The partitioning map is entitled:


Proposed Subdivision Map of a portion of lots 12, part of lot 13. Cornelia P. Moore Map bearing an original date of 03/24/11, signed and sealed by John P. Ferrentello, Licensed Land Surveyor, New York State License Number 45017, of John P. Ferrentello, P.C., comprised of three sheets, one of which depicts the entire Subject Premises to be subdivided, identifying the two proposed lots to be created therefrom, and contains a zoning data box for proposed Lot “B”, which is identical to existing Tax Lot 212, a second page depicting proposed Lot “B,” including drywell detail and yard drain detail, and a third page, depicting proposed Lot “A”, which is identical to existing Tax Lot 225 and which contains the existing single family home and accessory structures (collectively, the “Partitioning Plans”).


  1. The present application for subdivision and partitioning reflects the need for certain zoning variances required to be obtained from the Village Board of Appeals before any subdivision approval granted by the Planning Board can become effective.


  1. The Applicant has submitted to the Village Board of Appeals an application for variances in connection with the subdivision application, which variance application is pending before the Village Board of Appeals, and as to which the Board of Appeals has opened a public hearing on May 25, 2011, and which has been adjourned until June 22, 2011.


  1. Any approval granted by this Board with respect to the subdivision and partitioning application shall be subject in all respects to the granting by the Board of Appeals of the variances required for such subdivision and partitioning approval to become effective.


  1. The Applicant was represented by Peter Pickow, a Trustee of the Family Trust, and his wife, Amy Applebee, and by Frank Ferrentello of John Ferrentello, P.C., Mr. Ferrentello advised the Board that he is a licensed land surveyor in the State of New York and has an engineering degree.


  1. The Applicant does not propose any present construction in connection with this application, which is intended to reestablish as separate buildable lots the two separate tax lots that presently comprise the premises known as 7-A Locust Avenue.


  1. Notwithstanding the depiction in the Partitioning Plans of a proposed two story residence on proposed Parcel B (Tax Lot 212), or the depiction of drywell detail and yard drain detail, the Planning Board is neither considering nor approving any construction whatsoever, including, without limitation, the installation of drainage or storm water retention facilities, and any and all approvals relating to construction of any kind whatsoever on either parcel proposed to be created shall be subject in all respects to the approvals of the Village Building Department and whichever other Village Boards are authorized to have jurisdiction with respect thereto pursuant to all laws, rules and regulations then in effect and applicable to any such proposed construction, none of which is now before this Board.


  1. The Board finds that the small area of the Village affected by the proposed application has no through traffic, and so any proposed additional vehicular use of Green Hays, North Washington Street, and the westerly end of Locust Avenue will not generate a significant amount of vehicular traffic, which minimizes the potential adverse impact upon vehicle and pedestrian traffic that could arise from the creation of two homes where now there is one.


  1. Nevertheless, the Board finds, based upon testimony from Mr. Ferrentello, that ingress and egress to proposed Parcel B (Lot 212), which would become a separate building lot upon the granting of approval by this Board and the granting of the required variances by the Board of Appeals, should primarily be had off of Green Hays, in the manner depicted in the Partitioning Plans.


  1. Ingress and egress with respect to proposed Parcel A (Lot 225), which contains an existing home, should be restricted solely and exclusively to Locust Avenue, along the “Pot Handle” driveway that now services Lot 225, and which has for many years been the primary source of ingress and egress thereto, according to the testimony of the Applicant’s representatives.


  1. Ms. Applebee advised the Board that she understood, based upon her conversation with Village Building Inspector Joseph Saladino, that existing utilities are provided to Lot 225 via below grade utility lines in the Pot Handle, and that maintenance of same for the existing home, or for any home that may ultimately be built to replace the existing home, is the most viable means of providing utilities thereto, as well as to any proposed development of Lot 212.


  1. Mr. Ferrentello testified that the most viable placement for utility lines for both proposed parcels would be through the Pot Handle.


  1. To that end, the Board finds that a utility easement should be granted in favor of proposed Lot 212, burdening Lot 225, to allow utilities to be placed below grade in the Pot Handle to service Lot 212, it being the intention of the Board not to mandate that utilities for Lot 212 run across said Pot Handle, but to assure that an easement to accomplish same is created in favor of Lot 212 to facilitate same upon the eventual development of Lot 212, if that is so desired by the then-owners of Lot 212.


  1. Mr. Ferrentello also testified that fire and emergency vehicles will be able to access both parcels, either by maneuvering appropriate sized vehicles along Locust Avenue, North Washington and Green Hays, or by laying hoses connected to hydrants on Locust across the “Pot Handle” portion of Lot 225. The Board finds that the addition of one more home in that area will not adversely impact the existing circumstances, affecting fire and emergency services, which apply to the houses that now exist on North Washington and Green Hays.


  1. The Planning Board has determined, in light of the fact that there is no presently contemplated development on either of the proposed lots, to waive the requirement for any additional documentation and submissions by the Applicant beyond that contained in their original application to this Board and the materials presented at the June 2, 2011 public hearing.


  1. The Board also waives, to the extent applicable, any requirement that the Applicants submit a preliminary and final subdivision plat, as the Board is treating the application as one for final partitioning/subdivision approval.


  1. The Board considers the potential impact of the creation of Parcel B (Lot 212) on Village park and recreation facilities, pursuant to the Village’s rules relating to subdivision.


  1. This Board finds that the addition of one single family home in the Village is not an appropriate circumstance to require an increase in park and recreational facilities within the Village, in light of present and anticipated future needs for park and recreational facilities in the Village. The Board notes that there has not been a subdivision of property within the Village for more than ten years, and that based upon current Village Zoning requirements, there appear to be few opportunities for other residential parcels now improved with a single family home to be subdivided into two or more lots.


The Board notes that any future application that is proposed that would increase the number of families and/or residents in the Village will be analyzed on its own facts and circumstances to determine whether it is an appropriate case to warrant the set-aside of land from the proposed development for park and recreational purposes, or a payment in lieu of the set-aside of land, to be expanded for park and recreation purposes.


  1. The Board notes that the Applicants seek subdivision approval to create two new lots, prior to the formulation of any specific construction plans, in order to give the Applicants the option of conveying the entire parcel proposed for subdivision to a purchaser, or, alternatively, conveying two separate parcels to separate owners. The Board notes that the Applicants do not propose to demolish the existing structures, including the primary single family residence, on Parcel A (Lot 225). As a result of their determination to retain those structures, variances are required with respect to proposed Parcel A (Lot 225) because the existing structure would encroach into required set backs on the new Parcel A. The Board finds that, while the subdivision can be approved as presented, so long as the Board of Appeals grants the variances required, those variances should not allow future construction on Parcel A, whether such future construction be additions to the existing structure, or construction of a new home following demolition of the existing structure, unless the new construction satisfies all required zoning code provisions (other than any that arise from the existence of a pot handle for ingress and egress to Parcel A). To that end, any additions, alterations or new construction contemplated at any time for Parcel A shall conform to all then-applicable zoning code restrictions, or a variance application shall be required, and all necessary variances granted, before any such construction can be permitted.


Pursuant to Section 334-a of the Real Property Law of the State of New York, the Board hereby waives the necessity for the filing of the final plat in the Nassau County Clerk’s office, provided that, within 120 days after the filing with the Village Clerk of the final decision of the BZA, if any, granting the required variances, a deed is recorded with the Nassau County Clerk’s Office conveying PARCEL B (Lot 212) to the current owner, or another person or entity, and a copy of said deed and proof of recording are delivered to the Village within fifteen (15) days thereafter.


The Planning Board hereby grants the Application, and approves the Partitioning Map in the form submitted by the Applicant, conditioned upon the following:


Notwithstanding any contrary provision contained herein, this approval shall be deemed null and void and of no force or effect in the event that the Village Board of Appeals denies the pending Variance Application relating to the subdivision;


An easement in form satisfactory to the Village Attorney shall be recorded against Parcel A (Lot 225) in favor of Parcel B (Lot 212), allowing the installation, repair, maintenance and replacement of below-grade utility easements for all utilities reasonable and customary for single family homes in the Village, including water, sewer, electricity, cable and the like;


Parcel A (Lot 225) shall continue to be known as 7-A Locust Avenue, and shall have no ingress or egress to or from Green Hays, either directly across the shared property line between Parcel A (Lot 225) and Green Hays, or across an easement over Lot 212, so that ingress and egress to and from Parcel A (Lot 225) shall be had solely and exclusively off of Locust Avenue, across the existing Pot Handle as depicted in the Partitioning Map;


The primary means of ingress and egress for Lot 212 shall be as depicted on the Partitioning Map, onto Green Hays; however, nothing herein is intended or shall be deemed to preclude ingress and egress for Lot 212 to Locust Avenue across an easement in the Pot Handle portion of Parcel A (Lot 225), if the respective owners of Lot 212 and 225 so agree.


  1. All improvements to Green Hays required to render same accessible as the primary means of ingress to and egress from Parcel B (Lot 212) to Green Hays shall be accomplished by or on behalf of the owner of Parcel B (Lot 212), and all costs relating thereto shall be borne by such owner, and shall be accomplished to the reasonable satisfaction of the Village Building Inspector, and shall be a condition to the issuance by the Village of a certificate of occupancy for any structures on Parcel B (Lot 212).


  1. Within 120 days after the filing with the Village Clerk of the final decision of the BZA granting the required variances, a deed shall be recorded with the Nassau County Clerk’s Office conveying PARCEL B (Lot 212) to the current owner, or another person or entity, and a copy of said deed and proof of recording shall be delivered to the Village within fifteen (15) days thereafter.


  1. Any and all new construction on Parcel A (Lot 225), including additions and alterations to existing structures and the construction of new structures on buildings after the demolition of any existing structure or building, shall satisfy all then-applicable provisions of the Zoning Code of the Village of Baxter Estates, except those that relate to the existence of a pot handle for ingress and egress therefrom and thereto; for the sake of clarity, any new building or structure, and any addition or alteration to any existing building or structure on Parcel A (Lot 225) will satisfy all set back requirements applicable thereto, and any variances granted by the Zoning Board of Appeals, if any, which are set forth in Clause A above as a condition to the effectiveness of this subdivision approval, shall not be deemed to apply to any new construction or the extension or alteration of any existing structure or building thereon.


  1. Central Drive Catch Basin repair


On motion of Trustee Baldwin, seconded by Trustee Comer, it was RESOLVED to award the job to AJAC, General Contractors, Inc. for the amount of $ 29,605.00.


Mayor Nicholson Abstain

Trustee Comer Aye

Trustee Baldwin Aye

Trustee Peckelis Aye

Trustee Haagenson Aye


  1. Village Clerk

  1. Minutes

On motion of Trustee Baldwin, seconded by Trustee Comer it was unanimously RESOLVED that the reading of the minutes of the August 4, 2011 Board of Trustees Meeting be waived and they be and hereby are approved as presented by Clerk Whitcomb.



  1. Treasurer


A. Abstract of Vouchers


On motion of Trustee Haagenson, seconded by Trustee Comer, it was unanimously RESOLVED that the audited Vouchers presented by Treasurer Tuck, dated September 8, 2011 for the General Fund totaling $37,566.62 be and hereby are approved.


B. Court Audit


On motion of Trustee Baldwin, seconded by Trustee Comer, it was unanimously RESOLVED that the Village engage the services of Skinnon, Faber and Heck to perform an independent audit of the financial affairs of the Village Court for the fiscal period commencing June 1, 2010 and ending May 31, 2011 for a fee not to exceed $750.00.



  1. New Business


    1. Trustee Haagenson-Tax Cap


Trustee Haagenson informed the Board that she attended a NYCOM meeting on August 30, 2011, regarding the NYS newly enacted property tax cap.

The law is effective for local fiscal years beginning in 2012 and for the 2012-13 school year, and limits the growth in the property tax levy, the total amount to be raised through property taxes charged on the municipality’s taxable assessed value of property, will be capped at 2 percent or the rate of inflation, whichever is less, with some exceptions. Local communities have the ability to override the cap.


B. Tropical Storm clean up-Keogh


On motion of Trustee Comer, seconded by Trustee Baldwin, it was unanimously RESOLVED to approve the proposal by Robert Keogh to clean up debris and sand left by Tropical Storm Irene on Baxter beach and the surrounding areas, for a total of $1,140.00.



Mayor Nicholson announced that on September 9, 2011 he will be meeting with Town of North Hempstead Supervisor Jon Kaiman to discuss storm related issues.



There being no further business before the Board, on motion of Trustee Comer, seconded by Trustee Baldwin, it was unanimously RESOLVED that the meeting be and hereby is adjourned at 10:36PM



___________________________________

Yvonne Whitcomb, Village Clerk







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