315 Main Street, Port Washington, New York
September 6, 2012
Present: Mayor Frederick E. Nicholson
Trustee Charles Comer
Trustee Alice M. Peckelis
Trustee Douglas Baldwin
Trustee Nora Haagenson
Village Attorney Christopher Prior
Village Clerk Yvonne Whitcomb
Treasurer Laurence Tuck
Also Present: Court Reporter Joanne Horrocks, Diane Setter, Senior Account Manager Hometown Insurance, Jim and Marilyn Sacrestano, Maurice Mandel, Nancy Baldwin, Nancy Comer
Charles Comer led the Board in the Pledge of Allegiance.
Mayor Nicholson opened the Public Hearing duly advertised in the August 16, 2012 issue of the Port Washington News with respect to a proposal to appropriate up to $460,000.00 from the Village’s Snow and Ice Removal Repair Reserve Fund, to be transferred to the Village’s Land and Buildings Capital Reserve Fund.
A stenographic transcript of the public hearing was made and is appended to these minutes.
Open Regular Meeting 8:05PM
A. SEQRA RESOLUTION FOR UNLISTED ACTION:
POSSIBLE ACQUISITION OF IMPROVED REAL PROPERTY
AT 315 MAIN STREET AND RELATED FINANCING
The following Resolution was proposed for adoption by the Board of Trustees of the Village of Baxter Estates (the “Board”) on this 6th day of September 2012.
WHEREAS, the Board, as lessee, has entered into a lease of premises dated May 1, 2010 (the “Lease”), with the Port Washington Water Pollution District (the “District”), as lessor, pursuant to which the Village leases and occupies the premises known as 315 Main Street, Port Washington, New York, which are improved with a building used by the Village as its Village Hall (the “Premises”); and
WHEREAS, pursuant to the Lease, the Village holds the option to acquire the Premises on the terms and conditions set forth in said lease and the exhibits thereto (the “Option”); and
WHEREAS, the Board is contemplating the exercise of the Option, and is considering the means by which the Option exercise price may be financed, including through the application of Capital Reserve Funds available to the Village for such purpose, and/or the issuance of bonds or bond anticipation notes pursuant to the New York State Local Finance Law;
WHEREAS, the potential acquisition of the Premises being contemplated by the Board (the “Proposed Acquisition”), constitutes an action which the Board must consider under the New York State Environmental Quality Review Act (“SEQRA”), and the regulations promulgated thereunder by the New York State Department of Environmental Conservation (the “SEQRA Regulations”); and
WHEREAS, the Board, with Christopher J. Prior, the Village Attorney, has analyzed such action under the SEQRA Regulations; and
WHEREAS, SEQRA regulation §617.4, entitled “Type I Actions,” defines Type I actions as “likely to have a significant adverse impact on the environment,” and includes among others, “(iv) the acquisition, sale, lease, annexation or other transfer of one hundred or more contiguous acres of land by a State or Local agency”; and
WHEREAS, SEQRA Regulation §617.5, entitled “Type II Actions,” defines Type II actions as those that “have been determined not to have a significant impact on the environment,” and includes, among others, “(xxv) purchase or sale of furnishings, equipment or supplies, including surplus government property, other than the following: land . . . ;” and
WHEREAS, based upon the foregoing, the purchase of the Premises, a parcel of land less than one acre, is clearly not a Type I action, as it is significantly less than 100 acres, and is not a Type II action, because it involves the purchase of land, and so the Board determines that the Proposed Acquisition, if it were to be consummated, would constitute an “unlisted action,” defined pursuant to SEQRA Regulation 617.2 to include all actions that are neither Type I nor Type II actions; and
WHEREAS, the Board has received from the Village Attorney, and reviewed, a Short Environmental Assessment Form prepared by the Village Attorney in connection with the Proposed Acquisition (the “SEAF”); and
WHEREAS, the Proposed Acquisition relates to the Premises, which already are improved with a building constructed decades ago, which has been used since August 2010 by the Village as its Village Hall; and
WHEREAS, if the Proposed Acquisition is consummated, there will be no material alterations or renovations to the Premises or any improvement thereon, and the current use thereof will be continued;
NOW, THEREFORE, the Board hereby:
declares itself to be the lead agency for purposes of the SEQRA review of the Proposed Acquisition; and
finds that the Proposed Acquisition constitutes an unlisted action under 6 NYCRR, Par. 617; and
finds that the exercise of the Option and the financing of the Option exercise price, if consummated, would culminate in the Village acquiring title to the Premises, as same presently are improved with the building used by the Village as its Village Hall, with no material modifications or alterations presently contemplated either to the Premises or to said Improvements thereon, and as such will not have any material adverse impact upon the environment, for the reasons set forth in the recitals to this resolution, and also as set forth in the SEAF; and
therefore, this Board makes a negative declaration under SEQRA with respect to the Proposed Acquisition.
Upon motion duly made by Trustee Comer and seconded by Trustee Baldwin, the foregoing resolution was adopted, with the Board Members voting as follows:
B. Transfer from Snow and Ice Removal Repair Reserve Fund
On motion of Trustee Comer, seconded by Trustee Baldwin, it was unanimously RESOLVED to transfer $460,000.00 from the Village’s Snow and Ice Removal and Road Repair Reserve Fund, to the Village’s Land and Buildings Capital Reserve Fund.
On motion of Trustee Baldwin, seconded by Trustee Haagenson, it was unanimously RESOLVED to approve the expenditure of $485,000.00 from The Village’s Land and Buildings Capital Reserve Fund toward the purchase of 315 Main Street, Port Washington, subject to a permissive referendum.
Mayor Nicholson offered the following resolution and Trustee Haagenson moved its adoption:
BOND RESOLUTION OF THE VILLAGE OF BAXTER ESTATES, NEW YORK, ADOPTED SEPTEMBER 6, 2012, AUTHORIZING THE ACQUISITION OF A PARCEL OF REAL PROPERTY LOCATED AT 315 MAIN STREET, PORT WASHINGTON, INCLUDING THE EXISTING STRUCTURE THEREON FOR USE AS THE VILLAGE HALL, STATING THE ESTIMATED MAXIMUM COST THEREOF IS NOT TO EXCEED $879,000, APPROPRIATING SAID AMOUNT FOR SUCH PURPOSE, INCLUDING NOT TO EXCEED $485,000 FROM THE VILLAGE’S “LAND AND BUILDING CAPITAL RESERVE FUND” TO PAY A PORTION OF SAID APPROPRIATION, AND AUTHORIZING THE ISSUANCE OF NOT TO EXCEED $394,000 SERIAL BONDS OF SAID VILLAGE TO FINANCE THE BALANCE OF SAID APPROPRIATION
THE BOARD OF TRUSTEES OF THE VILLAGE OF BAXTER ESTATES, IN THE COUNTY OF NASSAU, NEW YORK, HEREBY RESOLVES (by the favorable vote of not less than two-thirds of all the members of said Board of Trustees) AS FOLLOWS:
Section 1. The Village of Baxter Estates, in the County of Nassau, New York (herein called the “Village”), is hereby authorized to acquire a parcel of real property located at 315 Main Street, Port Washington (Section 5; Block B; Part of Lot 44, Part of Lot 146, Part of Lot 159 and Part of Lot 60), including the existing structure thereon for use as the Village Hall. The estimated maximum cost thereof, including preliminary costs and costs incidental thereto and the financing thereof, is not to exceed $879,000 and said amount is hereby appropriated for such purpose, including the appropriation of not to exceed $485,000 from the Village’s “Land and Building Capital Reserve Fund”. The plan of financing includes the expenditure of not to exceed $485,000 from the Village’s “Land and Building Capital Reserve Fund” to pay a part of said appropriation, the issuance of not to exceed $394,000 serial bonds of the Village to finance the balance of said appropriation and the levy and collection of taxes on all the taxable real property in the Village to pay the principal of said bonds and the interest thereon as the same shall become due and payable.
Section 2. Serial bonds of the Village in the principal amount of not to exceed $394,000 are hereby authorized to be issued pursuant to the provisions of the Local Finance Law, constituting Chapter 33-a of the Consolidated Laws of the State of New York (herein called the “Law”), to finance a portion of said appropriation.
Section 3. The following additional matters are hereby determined and declared:
(a) The period of probable usefulness applicable to the object or purpose for which said $394,000 serial bonds are authorized to be issued exceeds five years; however, the bonds authorized pursuant to this resolution and any bond anticipation notes issued in anticipation of the sale of said bonds, shall mature no later than five (5) years after the date of original issuance of said bonds or notes.
(b) The proceeds of the bonds herein authorized, and any bond anticipation notes issued in anticipation of said bonds, may be applied to reimburse the Village for expenditures made after the effective date of this resolution for the purpose for which said bonds are authorized. The foregoing statement of intent with respect to reimbursement is made in conformity with Treasury Regulation Section 1.150-2 of the United States Treasury Department.
(c) The proposed maturity of the bonds authorized by this resolution will not exceed five (5) years.
Section 4. Each of the bonds authorized by this resolution, and any bond anticipation notes issued in anticipation of the sale of said bonds, shall contain the recital of validity as prescribed by Section 52.00 of the Law and said bonds, and any notes issued in anticipation of said bonds, shall be general obligations of the Village, payable as to both principal and interest by general tax upon all the taxable real property within the Village. The faith and credit of the Village are hereby irrevocably pledged to the punctual payment of the principal of and interest on said bonds, and any notes issued in anticipation of the sale of said bonds, and provision shall be made annually in the budget of the Village by appropriation for (a) the amortization and redemption of the bonds and any notes in anticipation thereof to mature in such year and (b) the payment of interest to be due and payable in such year.
Section 5. Subject to the provisions of this resolution and of the Law and pursuant to the provisions of Section 21.00 relative to the authorization of bonds with substantially level or declining annual debt service, Section 30.00 relative to the authorization of the issuance of bond anticipation notes and Section 50.00 and Sections 56.00 to 60.00 and 168.00 of the Law, the powers and duties of the Board of Trustees relative to authorizing bond anticipation notes and prescribing the terms, form and contents and as to the sale and issuance of the bonds herein authorized, and of any bond anticipation notes issued in anticipation of said bonds, and the renewals of said bond anticipation notes, and as to the execution of agreements for credit enhancements, are hereby delegated to the Village Treasurer, the chief fiscal officer of the Village.
Section 6. The validity of the bonds authorized by this resolution, and of any notes issued in anticipation of the sale of said bonds, may be contested only if:
(a) such obligations are authorized for an object or purpose for which the Village is not authorized to expend money, or
(b) the provisions of law which should be complied with at the date of the publication of such resolution, or a summary thereof, are not substantially complied with,
and an action, suit or proceeding contesting such validity is commenced within twenty days after the date of such publication, or
(c) such obligations are authorized in violation of the provisions of the constitution.
Section 7. This bond resolution shall take effect immediately, and the Village Clerk is hereby authorized and directed to publish the foregoing resolution, in summary, together with a Notice attached in substantially the form prescribed by Section 81.00 of the Law in the “Port Washington News,” a newspaper having a general circulation in the Village and hereby designated the official newspaper of said Village for such publication.
The adoption of the foregoing resolution was seconded by Trustee Comer, and duly put to a vote on roll call, which resulted as follows:
AYES: Charles Comer
Mayor Fred Nicholson
The resolution was declared adopted.
Councilwoman DiGiorgio was introduced to the Board and discussed many issues relating to the Town of North Hempstead and Baxter Estates Village.
Mayor Nicholson thanked her for her invaluable help in getting Nassau County to schedule a Spring clean up of the Barbara Johnson Park and Preserve.
On motion of Trustee Comer, seconded by Trustee Baldwin, it was unanimously RESOLVED to approve payment of village insurance premiums to Hometown Insurance for the year commencing September 2012 and ending September 2013 in an amount not to exceed $19,300.00.
Leaf Removal Contract
Village Clerk Whitcomb reported on the bids received on September 4, 2012 for the 2012, 2013 and 2014 Leaf Removal Contract.
On motion of Mayor Nicholson, seconded by Trustee Baldwin, it was RESOLVED that the Leaf Removal Contract be awarded to Dom’s Lawnmaker as the lowest responsible bidder for a one year contract.
Aye Mayor Nicholson
Abstain Trustee Peckelis
3 Overlook Drive-tree removal request
On motion of Trustee Peckelis, seconded by Mayor Nicholson, Fran Pierce, 3 Overlook Drive, was granted permission, by the Board of Trustees, to remove a tree that was posing a danger by its close proximity to the residence.
Rental of Second Floor 315 Main Street
On motion of Trustee Baldwin, seconded by Trustee Comer, it was unanimously RESOLVED to approve a one year lease to be prepared by village attorney Chris Prior for a portion of the second floor of 315 Main Street at a monthly rent of $700.00.
2 .Village Clerk
On motion of Trustee Comer, seconded by Haagenson, it was unanimously RESOLVED that the reading of the minutes of the July 10, 2012 Meeting of the Board of Trustees be waived and they be and hereby are approved as presented by Clerk Whitcomb.
On motion of Trustee Baldwin, seconded by Mayor Nicholson, it was unanimously RESOLVED that the reading of the minutes of the August 2, 2012 Meeting of the Board of Trustees be waived and they be and hereby are approved as presented by Clerk Whitcomb.
Aye Mayor Nicholson
Abstain Trustee Comer
On motion of Mayor
Nicholson, seconded by Haagenson, it was unanimously
RESOLVED that the reading of the minutes of the August 22, 2012 Special Meeting of the Board of Trustees be waived and they be and hereby are approved as presented by Clerk Whitcomb.
Abstract of Vouchers
On motion of Trustee Comer, seconded by Trustee Haagenson, it was unanimously RESOLVED that the audited vouchers dated September 6, 2012 for the General Fund totaling $39,909.85 be and hereby are approved as prepared by Treasurer Tuck.
Village Court Audit
On motion of Trustee Baldwin, seconded by Trustee Peckelis, 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, 2011 and ending May 31, 2012 for a fee not to exceed $750.00.
On motion of Trustee Comer, seconded by Trustee Baldwin, it was unanimously RESOLVED, By the Board of Trustees of the Village of Baxter Estates that Records Retention and Disposition Schedule MU-1, issued pursuant to Article 57-A of the Arts and Cultural Affairs Law, and containing legal minimum retention records for local government records, is hereby adopted for use by all 0fficers in legally disposing of valueless records listed therin.
FURTHER RESOLVED, that in accordance with Article 57-A:
only those records will be disposed of that are described in Records Retention and Disposition Schedule MU-1 after they have met the minimum retention periods described therin;
only those records will be disposed of that do not have sufficient administrative, fiscal, legal or historical value to merit retention beyond established legal minimum periods.
AT 11:45 PM the Board entered into Executive Session to discuss pending and threatened litigation.
AT 11:55 PM , Mayor Nicholson stated that Executive Session had concluded, and that no action had been taken.
Deputy Mayor Comer noted that the Village Clerk had received an undated, hand-written letter from Phyllis and Philip Gallo, owners of the premises at 23 Locust Avenue, advising that they have applied to the Zoning Board to amend the 2011 Zoning Board conditional grant of variances with respect to 23 Locust Avenue, and requesting a reduction of amounts owing in connection with their prior application. The Board members expressed concerns that any reduction could set a precedent and might be deemed an unlawful gift of public funds.
The Village Attorney noted that where a party disputes either the fact or the amount of a debt to the Village, the Village is not deemed to be gifting public funds if it accepts a lesser amount to settle the dispute. The Board members found insufficient information before them to address the request. The Board members also discussed Village Code § 102-7, which provides that unpaid fees, costs and expenses relating to a land use application shall constitute a lien against the affected premises, upon compliance with the process set forth in that section, including certification of the amount due by the Village Clerk.
Trustee Comer inquired as to the propriety of the Zoning Board hearing the application to amend conditions of a previous decision, in light of the issue of outstanding amounts owed with respect to the prior application. The Village Attorney noted that Village Code §102-6 ordinarily prohibits the processing of a land use application when the parcel has violations or the applicant owes money to the Village for a prior application, but that the Board of Trustees has the authority, pursuant to that Code Section, in its “sole discretion,” to authorize Village boards and officials to process such an application by waiving the prohibition. Under that Code section, the Board “shall consider, in determining whether or not to grant such a waiver, whether the applicant is acting in good faith and with due diligence to cure [existing] violations.”
The Board members noted that the Gallos have paid to the Village $1,500 to be applied by the Village to obtain a survey of the Gallo premises by a surveyor selected by the Village, and that a public hearing with respect to the Gallo’s new application to the Zoning Board is scheduled for September 19, 2012. The Board members noted that the original project constructed unlawfully at the Gallo premises has impacted abutting neighbors and the community at large, and that the matter has consumed a great deal of time, attention and expense by the Village and neighboring residents. The Board members discussed their sense that a resolution of the outstanding issues, including illegal conditions, at the Gallo premises, in an orderly and expeditious manner, under the jurisdiction of the Zoning Board, which expended significant time and effort already on this situation, is in the best interests of the Village and its residents. The Board Members found that the Gallo deposit toward the survey of their premises, the Gallo submission of a new zoning application with associated fees and deposits, and the significant alterations accomplished at the premises since the 2011 BZA decision, including reduction of the original illegal construction retaining wall, reflect the good faith efforts to cure the violations on their property that warrant a waiver by the Board of the Village Code §102-6 processing prohibition.
After further discussion, upon motion duly made by Trustee Baldwin, and seconded by Trustee Comer, the Board RESOLVED, as follows:
The request by Phyllis and Phillip Gallo, owners of 23 Locust Avenue, for a reduction in amounts owing to the Village with respect to a prior application by the Gallos to the Village Zoning Board, shall be tabled, pending further inquiry; and
The Board, pursuant to Village Code §102-6.D., hereby grants a waiver from the prohibition set forth in §102-6 on the processing of applications relating to parcels within the Village when the applicant is in arrears to the Village with respect to monies owed concerning outstanding applications or outstanding violations, to the extent required to allow the Village Board of Appeals to entertain the Gallo application to amend that Board’s 2011 decision granted with respect to the premises located at 23 Locust Avenue.
At 11:59 PM, there being no further business, the meeting was adjourned.
Yvonne Whitcomb, Village Clerk