HomeMy WebLinkAbout2021 07 20 Planning Board Minutes1
PLANNING BOARD DRAFT MINUTES
Town of Danby Planning Board
Minutes of Regular Meeting
July 20, 2021
DRAFT
PRESENT:
Ed Bergman (Acting Chair)
Scott Davis
Kathy Jett
Kelly Maher (on zoom)
Elana Maragni
Bruce Richards
ABSENT:
Jody Scriber
OTHER ATTENDEES:
Town Planner David West
Recording Secretary Alyssa de Villiers
Public Cheryl Andrews, Mark Andrews, Debbie Benson, Ted Crane, Danny Eastman,
Joel Gagnon (Town Supervisor), Garry Huddle, Katharine Hunter, Benjamin Ink,
Alice Napierski, Kim Nitchman, Russ Nitchman, Norbut Solar team (David Cox of
Passero Associates, Sean Greany, Disha Gupta, David Norbut, Nathan Vander
Wal of Nixon Peabody LLP), Ronda Roaring
This meeting was conducted in person with virtual access available through Zoom. Public comments
regarding volume, camera angle, and connectivity have been omitted. Connectivity with Zoom was
repeatedly lost during the meeting due to a thunderstorm.
The meeting was opened at 7:03pm.
(1) CALL TO ORDER/AGENDA REVIEW
No items were added to the agenda.
(2) PRIVILEGE OF THE FLOOR
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Ronda Roaring said that the applicant for 204 Nelson Rd., Alice Napierski, had submitted a letter saying
she was 82 years old, had had a stroke, was doing estate planning, and wanted permission to divide her
land. Roaring said Napierski had provided no proof of age, health, or estate planning. She felt the Town
Board fell apart on the issue (of allowing an exemption from the subdivision moratorium) and acted
unprofessionally. She did not feel that the applicant had provided any evidence of any kind that she actually
needed to divide her land at this point in time.
Regarding the solar array application, Roaring alerted the Board to a document called the “New York State
Solar Guidebook for Local Governments,” published by NYSERDA in August 2020. She thought they
should be reading and discussing this publication. She said the Department of Environmental Conservation
(DEC) wants to encourage people putting up solar arrays to use native seed grass and plants. She felt the
Town needs to learn much more before having a public hearing on whether someone should be allowed to
put one up.
Danny Eastman said he, his wife, daughter, and son-in-law own 54 Bald Hill Rd., which is right next to
where the solar array will be. He said that the proposed access road is their current driveway. His
understanding of their deed is that the Town could create a public road, but right now it is not public, and it
is designed as a driveway. He said 15’ of a 60’ right of way is deeded to them, and that right of way
terminates at the time the Town puts in a Town road. This 15’ is their flag lot’s entire connection to Bald Hill
Rd. He read from the deed that they are responsible for plowing and maintaining the driveway and said the
solar farm’s plan did not address this—he did not want their family to be responsible for the maintenance,
or even half the maintenance. He suggested making it a public road. He said the solar farm’s report
suggests no modifications to existing roads or changes in access, but the gravel driveway will not stand up
to the abuse of trucks. He also expressed that it is peaceful and quiet currently with little traffic. He
expected during construction there would be six days of traffic, access to their home might be cut off at
times, and there would be constant dust and noise for months; pedestrian access was also not addressed.
There is a natural gas line along the driveway that has not been addressed. He did not see a buffer zone
plan between the two properties, and he pointed out that they have children and a dog outside. He
emphasized the vehicles coming and going as a potential safety hazard for them. He proposed a six-foot
berm with pine trees as a barrier during the full year of construction. He said he saw a 25 -year life was
expected for the arrays, but the paperwork also stated that they may operate for 40 years or more, and he
wondered which it was. If it was 40, any plans the Town may have for the site will go out the tubes. Once
the solar farm was built, he worried that children in the neighborhood would have nothing stopping them
from playing in the arrays. At this point, Mr. Eastman was stopped and asked to continue during the agenda
item on the matter.
Joel Gagnon (Town Supervisor) said that the notice in the paper for 204 Nelson Rd. indicated that the
Planning Board would be having a hearing for the request of a waiver from the moratorium. He pointed out
that that request went to the Town Board and was granted, and any public hearing tonight should be on the
proposed subdivision. Planner West said that notice was an error. There would be no public hearing th is
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evening, and the hearing would be scheduled for the following meeting if the Board decided the application
was complete.
(3) APPROVAL OF MINUTES
MOTION: Approve the June 15th minutes
Moved by Richards, seconded by Maragni
The motion passed.
In favor: Davis, Jett, Maragni, Richards, Bergman
*Note: No remote voting allowed
(4) TOWN BOARD LIAISON REPORT
Leslie Connors (Town Board member) was not present to give a report.
(5) DEVELOPMENT REVIEW
SUB-2021-04 204 Nelson Rd.
Subdivision Parcel: 3.-1-13
Applicant: Alice Napierski
Anticipated Board action(s) this month: Application Sketch Review & Schedule Public Hearing
Proposal: Subdivide parcel into 2 parts for estate planning
The applicant, Alice Napierski, explained what she would like to do. She has 7.5 acres and two sons and
would like to settle it so they each have some share of the land. She said she used to fix people’s houses
but is not able to do that anymore. She will be 83 in September. She has started the process to get electric
onto the other side of the property by beginning to take down some trees. There is a gas line that goes
through the middle, so the land is divided such that this will be in the two proposed properties. The land is
cut as proposed so both parcels will have the frontage to be able to build. She said she had an idea t o build
a wee house and asked about permitting for that. Planner West said that would be considered a vehicle
and therefore not need a permit, but Scott Davis said not everyone shares that determination.
In response to a question from the applicant, Acting Chair Bergman said that giving private medical records
to the Planning Board was not a requirement and that that suggestion was not coming from the Board or
the Town.
A neighbor, Mark Andrews, asked what the minimum acreage for building a house was in the Town and
whether two acres would go to the currently existing house. He wondered whether the created lot would be
saleable or buildable given setbacks, septic, well, and the pipeline. Planner West said the limit in this case
was the 200’ of frontage per lot, which is the way the division is proposed. He added that it is a
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subdividable lot; figuring out how to build on it is a different question, which the Board was not reviewing
that evening.
Elana Maragni confirmed with Planner West that the Town Board had granted an exemption from the
subdivision moratorium. In response to a question from Bergman about site stipulations, Planner West said
those requirements would only apply to the standard subdivision process for three or more parcels.
MOTION: Schedule a public hearing
Moved by Maragni, seconded by Richards
The motion passed.
In favor: Davis, Jett, Maragni, Richards, Bergman
*Note: No remote voting allowed
PUD-2021-01 Norbut Solar Farm
Parcel: 10.-1-21.122
Applicant: Passero Associates
Anticipated Board action(s) this month: Application Review, Sketch Review, & Schedule Public
Hearing
Proposal: Zoning change, subdivision and site plan to allow 3 parcels each with 5MW of solar on
existing 111 acre parcel.
Norbut Solar Farm presentation
David Norbut introduced his team. He expressed the hope that through the process they would alleviate all
the concerns of the Board and the neighbors.
Sean Greany said they tried to deliver what they said they would in their sketch plan review. Between th en
and now they have done professional studies with experts to determine the environmental sensitivities and
local laws. He showed their PV design sketch. He said their objectives for the evening were to have the
application declared complete and have a public hearing scheduled for the following meeting. He said they
wanted to flush out all concerns the community might have and alleviate them to the greatest extent
possible. He emphasized that they are a small, local company based in Rochester, they buy the land rather
than lease it, and they want to be good neighbors.
Disha Gupta talked about the benefits the company offers: they are a quiet neighbor; they are a tax
contributor; they create employment opportunities including landscaping, security, and maintenance; there
would be a reduction for residents in their electricity bills if they sign up; and they are a local company who
is happy to address questions and concerns. She added that they are committed to clean and green energy
without harming the environment or people around them.
Board Questions
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Bruce Richards asked if the projections on the cost of decommissioning were realistic and if the 2% a year
figure mentioned was enough. Mr. Norbut said he thought it was more than enough, and the
decommissioning plan does not account for any scrap va lue for any of the plant. A cost analysis over the
last 30 years of the metal markets shows the decommissioning of a solar facility is a positive cash influx not
a negative because of the amount of metal and copper. He said that for their decommissioning e valuation,
they did not use that and did it as if it was all being thrown away, which it will not be. The 125% value and
the 2% escalator is a substantial amount of money sitting with the Town gaining value. Richards said his
understanding was this would be a bond that would be renewed annually, so it was not that they would
have the money. Mr. Norbut agreed but said it was still something they would be paying for. The bond
would be in the Town’s name and they have a decommissioning agreement that would be draft ed with the
attorneys. He said it has been used in over 30 projects and is a standard in the industry. Richards said he
wanted to be sure the Town would not be paying for anything when the time comes and said he was still
skeptical. He thought the cost of materials and labor would increase over the lifespan of the panels. Also,
because of the big buildout in solar, he thought a lot of panels might be decommissioning at the same time,
potentially lowering scrap values due to supply and demand. Mr. Norbut said their decommissioning plan is
for union wages and no scrap value at all is included in the calculation. Richards noted that the proposal
was not presented as a budget with line items. Mr. Norbut said if he would like to see more on that, he
could let him know.
Acting Chair Bergman asked, if the site turns out to be really good, why would they take everything down
(at the panels’ end of life) and not put new solar panels up? Mr. Norbut said there is a misunderstanding
that something happens in 20 years that makes these projects not work anymore. In fact, if the efficiency
runs down, it will still be producing energy; in 20 years, the panels will still be operating at 80% of the
original power intended. At that time, you do a “repower” where you inspect piles, inverters, and panels. He
felt that the panels would therefore be more long term than 20 years.
Scott Davis asked Mr. Norbut how old his oldest extant array is and where it is located, and Mr. Norbut
answered 2016 in Parma, NY.
Elana Maragni asked about the proposed subdivision in relation to the moratorium, and Planner West said
that because it is not in the Low Density Residential zone, the moratorium does not apply.
Richards had a question regarding part of a letter from the team’s attorney. Their attorney, Nathan Vander
Wal, explained that what Richards was asking about was a reference to the process this will go through of
a planned development zone (PDZ). As part of that process as set up in the Town’s code, the bulk and
area requirements of the PDZ will be established; the project will need to meet the requirements of the
Commercial zone except as altered or waived by the Town Board in their establishment of a PDZ. He said
the section in question means the project will comply with the Commercial zone except to the extent it
cannot by its design, and those bulk and area requirements will be set through the PDZ. Mr. Vander Wal
said he wanted to show the application complies with the Town’s code as much as it can at this point, and it
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will be in full compliance as a part of the PDZ process. Bergman asked if anything had been brought
forward about the PDZ yet, and Planner West said no.
Planner West said the Board could either request additional components of the application, for example the
text of a PDZ or other things needed for review, or determine the application complete. The Board will then
have a public hearing and decide whether to recommend that the Town Board consider a PDZ. He said that
either the Town Board or the Planning Board could be lead agency for the State Environmental Quality
Review Act (SEQR), and he thought the Town Board would be an appropriate body because they are
elected and therefore more accountable and because the biggest decision is the adoption of the PDZ that
allows the subdivision to happen. The reason it will be a PDZ is because the subdivision does not work
under the current zoning rules. No one on the Planning Board expressed any opposition to the Town Board
being lead agency.
Regarding needing three lots, Mr. Norbut explained that under the Public Service Commission, th eir
proposal is considered “community solar.” This means they need to be under a 5 MWac cap, so they need
three lots in order to follow those guidelines. He said there will be fences going around each one rather
than the whole thing. It used to be a 2 MW cap, but they increased it to 5 because the cost benefit is
otherwise hard to make work with construction and planning costs.
Bergman asked, given the conversations in the Town about density in the central Danby hamlet, what size
lots would be allowed in this area under the proposed zoning update. Planner West said this would be part
of the proposed Hamlet Neighborhood zone. The subdivision would be allowed under the proposed rules
as there would not be minimum lot sizes, but the use has not yet been discussed. He added that currently
what is at issue for subdividing is not the lot size but the frontage; it is a flag lot. Maragni asked if they have
any other solar arrays with such small road frontage and access points. Mr. Norbut said that you do not
usually see 100 acres with so little access. He said they always try to push the arrays to the back and
shield them, and they work with a landscape architect to minimize the viewshed of the neighbors.
Planner West asked about road maintenance, an issue Mr. Eastman had brought up during privilege of the
floor. He said his understanding of the concern was there is a component in their deed that says
maintenance is split 50-50 between the owners, and in this case that would not make sense. Mr. Norbut
said he expected they would assume responsibility for the driveway. He said the driveway looks like it has
been well maintained, and they would keep it that way. He said they recognize a year of construction is
burdensome and they plan to talk to the neighbors and hopefully work out a mutual agreement. After the
array is built, he said there is minimal traffic and a lot of the monitoring is remote. For construction, they
would put “caution” and “slow” signs up on Bald Hill Rd. He said there w ould be a site superintendent on
site the whole time. Once they are done with the facilities, there will be 7’-high fence around each facility
with voltage signage and there will be plantings chosen based on a plan by their landscape architect.
Maragni asked if Mr. Norbut could give an example of how minimal traffic will be in terms of actual number
of checks. Mr. Norbut said the maximum mowing would be four times a year for three days at a time; to
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give an idea, this year will be two cuttings total. He said sheep are not possible for this site. Security checks
will be about once a month. The arrays are mostly monitored remotely and if there is a problem, someone
will come out. The facilities are not complicated and are to utility -grade standards.
In response to a question from Richards, who said he was thinking of the visual impact along the driveway
of the neighbor, Mr. Norbut said that bringing in the power, lines will be buried, and they use cable trays on
the arrays themselves. The interconnect will be up on a pole, and then will go underground from there.
Bergman asked if Mr. Norbut’s contact information was available for people to contact him directly, and Mr.
Norbut said definitely, and one person from Danby has actually come out to see the farm in Parma. He said
the Town could even put their information on their website.
With regard to determining the application complete, Maragni said she thought the big part that was
missing was the draft of the PDZ law, which seemed to her to be an important piece. Planner West
explained that what she was asking for was text of the actual zone that the Town Board would adopt
allowing what they want to do. Mr. Norbut asked if this could be a condition that they would supply this
within five business days. Davis asked, based on past PDZs, why they need this text, and West said it is
understandable to not have it in the application with the way the zoning law is written. However, something
needs to be adopted, and it would be helpful to have. A complete determination could be contingent on
getting this language. Davis confirmed that it is the Town Board who will create the PDZ.
Benjamin Ink (54 Bald Hill Rd.) said he is not opposed to the solar farm, and in fact would prefer it to a
bunch of houses. But their driveway is being talked about as a public access road, which it is not. Their
deed specifically says that they are liable for all maintenance until there is another house built, and Norbut
Solar is not building a house. They need their deed changed to reflect the solar farm will be taking
responsibility. Their driveway is not designed for trucks, and right now they pay for everything. Kathy Jett
asked about the driveway length and ownership. Mr. Ink thought it was about 500’. He said his
understanding was that the right of way was three separate sections; they have 15’ of road frontage, and
he thought the remaining 45’ was two owners. Russ Nitchman, who sold the land to Norbut Solar, said the
45’ had been two but was now one owner again. He thought Norbut Solar would make an agreement with
them. Mr. Ink said they either need their deed to be changed or a contract in writing before the project is
approved.
In response to a question from Davis about the access road, Mr. Norbut showed it on a map. He said they
are buying the land from Mr. Nitchman including the driveway, but the neighbors have a right of way. Mr.
Norbut said they would make an agreement with them contingent on approval of the project. Mr. Nitchman
said the driveway would be made more substantial, and Mr. Norbut agreed. He added that when they leave
the project, they always leave the road in good condition. Mr. Nitchman said he thought it would need more
gravel and crowning.
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MOTION: Accept the application as complete pending any incongruities that accrue from the PDZ and have
a public hearing on the proposal at the next meeting contingent on receiving the text for a PDZ within five
days (of this meeting)
Moved by Davis, seconded by Maragni
The motion passed.
In favor: Davis, Jett, Maragni, Richards, Bergman
*Note: No remote voting allowed
Planner West clarified that this text would be the actual rules for the zone, i.e., the things that would be
different than the Commercial zone rules. This is shown on the applicant’s plan, but it would be clearer to
have it as the law the Town Board will need to adopt to allow the project to move forward. In the PDZ
process, the Town Board will approve a general site plan, and then it will come back to the Plan ning Board
to approve a final site plan.
(6) PLANNING GROUP UPDATE – Review/Discuss previous planner recommendations
Site Plan Review Committee
Maragni reported on the work of the site plan review committee (consisting of herself, Scott Davis, and
Bruce Richards). She said they have met twice since the last Planning Board meeting to discuss site plan
review in Danby, where there is a lack of clarity, and where guidelines are needed. They reviewed other
nearby towns’ materials for site plan review, and they found that Lansing has a wonderful chart broken
down by zone and uses that shows what action is needed. They liked the layout and the ease of access
and felt the goal should be to have something like this in Danby’s zoning document. Bergman said the chart
as a separate pdf so people did not have to read through all the zoning could also be really helpful. Maragni
said another thing they had talked about was scaling the site plan review and tailoring it to uses, which
Danby could build into the chart.
Richards said Enfield and Newfield do not have zoning but use site plan review, and they have a very
concise laundry list of what would require site plan review and what it would consist of. Lansing has zoning
so the way they integrate it in is even better. He noted large sections of Enfield and Newfield’s laws are the
same text, which Danby could use also.
Planner West said he loved the idea of the table. He said that with the proposed zoning revisions, more
actions will require site plan review, and he would like feedback from the committee on what people should
need to submit. Davis said they had talked about that and played around with the idea of streamlining the
application process with the Planning Board letting applicants know what they need for each proje ct, except
for some projects that might be boiler plate. West said it would be helpful to have different tiers of projects,
so a basic project would have a set of things required that is less than for a bigger project, either based on
cost or size and type of the project. He said it is not clear right now when applicants can come with only a
few of the full list of potential requirements. Richards said they had talked about how some really simple
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site plan reviews may not need to come to the Board if the Board has a really clear template and checklist
prepared. He noted it is a minimum of a month for applicants, more likely two, which can be very off -putting.
In response to a question from Maragni, West said site plan review is the only way Danby has in the code
for reviewing much about a project. Things that do not require site plan review like a single-family home
only go to the Zoning Officer to review setbacks and the Code Officer to ensure compliance with the
building code. He felt the things that should come to the Planning Board are the things that need discretion.
Davis confirmed that what Planner West would like the committee to look at next is the application process
and what kinds of things people have to address when site plan review is triggered, with different tiers for
that.
Zoning Update
Planner West said that in the new zoning proposal, in the areas outside the hamlets, there is increased site
plan review required. The site plan review parameters include that driveways should be shared when
possible, new road access points should be minimized, clustering of development rights is encouraged,
clustering of lots may be required by the Planning Board, and new development should minimize impact on
Class I and II soils. These are things that have flexibility and require someone to make a call if they have
been done enough. Applicants will make an argument for their decisions and the Board will need to weigh
that and consider the tradeoffs.
West said that the current Low Density Residential zone will become four zones. In the two most sensitive
of these, all buildings will require site plan review and will need to comply with these parameters in the eyes
of the Board. He said he tried to keep them as things that are easily measured, but there is still a
judgement call. He said he wanted to make sure the Board has the authority and the tools to say no or to
say that an applicant has to change something.
West reported that he presented a complete draft of the current zoning red lined with changes to the Town
Board the previous evening. He will be posting this to the Town’s website and an email will be going out.
There are two hamlet zones and four zones outside the hamlets. Lot sizes have increased outside the
hamlets and a transfer of development rights system has been introduced. The process of the working
groups (hamlet and conservation) has drawn to a close, and there will now be a month for people to review
the draft and ask questions. The Town Board will then be seeking comments on the draft. He noted that
some people will think it goes too far and others that it does not go far enough.
West said that in the hamlet, the focus is on making it as easy to build as possible. The biggest barrier to
development now is the Health Department regulations, so they are leaving that as the barrier; if a person
can figure out septic, water, the fire code, and the building code, then they can build 1 –4 unit housing or
small commercial in the hamlet center. Not a lot will require Planning Board approval in the hamlet unless it
is bigger, but this will encourage focus on a denser, walkable center. Secretary de Villiers asked if the by
right commercial buildings would still need to follow the Commercial Design Guidelines, and West said yes.
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He said staff review is being introduced as a possibility for some of these things; when the Town is clear
about what it wants and an applicant can bring something to him to review faster, that makes sense.
(7) ADJOURNMENT
The meeting was adjourned at 8:56 p.m.
___________________________________________
Alyssa de Villiers – Recording Secretary