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HomeMy WebLinkAbout2015-04-16 TB 4-16-15 Page 1 of 20 TOWN OF DRYDEN TOWN BOARD MEETING April 16, 2015 Present: Supervisor Mary Ann Sumner, Cl Gregory Sloan, Cl Jason Leifer, Cl Linda Lavine Absent: Cl Joseph Solomon Elected Officials: Bambi L. Avery, Town Clerk Other Town Staff: Ray Burger, Director of Planning Mahlon Perkins, Town Attorney David Sprout, Code Enforcement Officer Supv Sumner opened the meeting at 7:05 p.m. and board members and audience participated in the pledge of allegiance. She announced that the board will not take action on the amendment to the zoning law tonight. PUBLIC HEARING PROPOSED IMPROVEMENT PROJECT IAWWTP INFLUENT BUILDING & DEWATERING PROJECT Supv Sumner opened the public hearing at 7:07 p.m. There were no comments and the hearing was left open. PUBLIC HEARING SPECIAL USE PERMIT FREEVILLE SHOPPER 256-260 MAIN STREET, FREEVILLE Supv Sumner opened the public hearing at 7:08 p.m. David Bravo-Cullen, architect for the project, explained the site plan and building plan. The building will be 24’ by 32’ with an adjacent garage. The building will be used for assembling The Shopper. A few small buildings will be removed from the site, and the building will be served by existing water and sewer. There will be six parking spaces and a loading area for the truck. Cl Sloan asked about noise and the outside lighting and the affect on the neighboring mobile home. He was told there would be no noise and the lighting would be night-sky compliant. Supv Sumner reviewed the Planning Department memo for th is application. RESOLUTION #64 (2015) – WAIVE SITE PLAN REVIEW – FREEVILLE SHOPPER Supv Sumner offered the following resolution and asked its adoption: RESOLVED, that this Town Board hereby waives full site plan review the application of Freeville Shopper at 256-260 Main Street, Freeville. 2nd Cl Leifer Roll Call Vote Cl Sloan Yes Supv Sumner Yes TB 4-16-15 Page 2 of 20 Cl Leifer Yes Cl Lavine Yes The property is in a rural residential district. The use is classified as a service business subject to special use permit. It is an unlisted action subject to SEQR. The board reviewed the SEQR form for this project. Supv Sumner read each question aloud. RESOLUTION #65 (2015) – NEG SEQR DEC – FREEVILLE SHOPPER Cl Lavine offered the following resolution and asked for its adoption: WHEREAS, A. The proposed action involves consideration of the application of The Freeville Shopper to construct a building at 256-260 Main Street, Freeville, for the purpose of compiling its weekly editions. B. The proposed action is an Unlisted Action for which the Town Board of the Town of Dryden is the lead agency for the purposes of uncoordinated environmental review in connection with approval by the Town. C. The Town Board of the Town of Dryden, in performing the lead agency function for its independent and uncoordinated environmental review in accordance with Article 8 of the New York State Environmental Conservation Law – the State Environmental Quality Review Act “(SEQR), (i) thoroughly reviewed the Environmental Assessment Form (“EAF”), Part I, and any and all other documents prepared and submitted with respect to this proposed action and its environmental review, (ii) thoroughly analyzed the potential relevant areas of environmental concern to determine if the proposed action may have a significant adverse impact on the environment, including the criteria identified in 6 NYCRR §617.7(c), and (iii) completed the EAF, Part II; NOW, THEREFORE, BE IT RESOLVED AS FOLLOWS: 1. The Town Board of the Town of Dryden, based upon (i) its thorough review of the EAF, Part I, and any and all other documents prepared and submitted with respect to this proposed action and its environmental review, (ii) its thorough review of the potential relevant areas of environmental concern to determine if the proposed action may have a significant adverse impact on the environment, including the criteria identified in 6 NYCRR §617.7(c), and (iii) its completion of the EAF, Part II, including the findings noted thereon (which findings are incorporated herein as if set forth at length), hereby makes a negative determination of environmental significance (“Negative Declaration”) in accordance with SEQR for the above referenced proposed action, and determines that neither a full Environmental Assessment Form, nor an Environmental Impact Statement will be required, and 2. The Responsible Officer of the Town Board of the Town of Dryden is hereby authorized and directed to complete and sign as required the determination of significance, confirming the foregoing Negative Declaration, which fully completed and signed EAF and determination of significance shall be incorporated by reference in this Resolution. 2nd Cl Leifer Roll Call Vote Cl Sloan Yes Supv Sumner Yes Cl Leifer Yes Cl Lavine Yes TB 4-16-15 Page 3 of 20 Tompkins County Planning has completed its review. Supv Sumner said there are no recommendations for restrictions from them or the town’s Planning Department. There were no questions or comments from the board or the public and the public hearing was c losed at 7:28 p.m. RESOLUTION #66 (2015) – APPROVE SPECIAL USE PERMIT – FREEVILLE SHOPPER – 256-260 MAIN STREET, FREEVILLE Supv Sumner offered the following resolution and asked for its adoption: RESOLVED, that this Town Board hereby approves the special use permit application of the Freeville Shopper to construct a building for the purpose of compiling its papers at 256 -260 Main Street, Freeville, subject to the Standard Conditions of Approval (8 -2008). 2nd Cl Leifer Roll Call Vote Cl Sloan Yes Supv Sumner Yes Cl Leifer Yes Cl Lavine Yes PUBLIC HEARING AMEND LOCAL LAW #1 OF 2015 Supv Sumner opened the public meeting at 7:31 p.m. Supv Sumner repeated that no action will be taken tonight. Cl Lavine explained that the board had asked Atty Perkins to find a path to allow the board to legally oversee the question of the West Dryden pipeline and other similar projects. He found that path and created this document defining what we were and were not going to ask for a special use permit for. The logic of it was that the existing law allows us to do that, but that we then needed to clear up the issue so that we were not inviting trouble by leaving us open to requiring similar oversight of a myriad of things that we had no desire to review. Atty Perkins has done what she thought was a good job of that initially. There may be some tweaking necessary. The point of it is to say that we can indeed oversee these projects. While at the Association of Towns meeting she ran this general issue of how we were approaching it by several attorneys and everyone agreed that it was a logical way to proceed. This hearing is to present it and get input. It can then be modified as needed. Supv Sumner said the entire use table is included, but the only change is to delete the term “public utilities” and insert the terms “public utility delivery facilities” and “public utility structures.” They have tried to define the difference between ordinary service lines and infrastructure of a grander scale. Basic residential service lines are permitted by right with no permit review. Public utility structures will require a special use permit in all districts. Public comment: Vinton Stevens, Esq. said he has been retained by residents concerned (Genevieve DeClerck, Hugh Edwards, Clifford Kraft, Inshik Lee, Stephen Merwin, Linda Parks and Sue Stein) about the amendment and the Lansing Freeville reinforcement project. He has submitted a cover letter and memorandum of law. He agrees that there is no question that a special use permit would be required for the proposed project under the current zoning law. His clients agree in principal that if a line is 1,000 feet or less and if it services residences or businesses in the Town of Dryden, then it should not require a special use permit review. They have concerns about the amendments as proposed. The proposed new subsection E of Section 900(2) appears to say that as long as the entity constructing the public utility is regulated, then the structure would be exempt from the Special Use Permit. That would mean the TB 4-16-15 Page 4 of 20 proposed Lansing Freeville reinforcement project would be exempt from the special use permit. That is one possible reading; there is some ambiguity in how it is written. The definition of public utility delivery facilities states that it will be local infrastructure. He pointed out that the portion of the Lansing Freeville reinforcement project that runs down West Dryden Road is local in that it is in the town. It is unlike the NSYEG franchise agreement that specifies that gas under this franchise agreement is going to be provided for use of businesses or residences in the town. The term public at large is somewhat ambiguous and could include residents of the county or adjoining areas. It would be helpful to make it clear that public utility delivery facilities are local facilities that serve the public of Dryden. He understands now that no revisions have been made to the amendment. His clients believe it is extremely important that any public utility development that benefits individuals and businesses outside town of Dryden should be subject to the special use permit review process. Any other public utility development project must undergo special use permit reviews and the most stringent conditions as are reasonable should be imposed. It appears that the project is an unregulated pipeline and therefore, the special use permit and the conditions would be the only conditions on the pipeline and they believe very strict review should be required. He uses the term public utility development to encompass any type of development that is for the purpose of delivering public utilities. His clients urge the board to do a SEQR review, a stringent one, not just for the special use permits involving public utilities, but also for the amendment, because theoretically this amendment can affect all the land in the town. Supv Sumner said she knows that SEQR review is required. Cl Lavine asked if he had suggested wording for tweaking the proposed amendm ent. Mr. Stevens said no, they had just provided the parameters. He believes public at large should be better defined and that it should be clear that the pipelines must be regulated by FERC or PSC, not just the entities that are constructing them. James Skaley, 940 Dryden Rd, said that in Varna this past winter they had problems with a broken water main. He wondered what impact this amendment would have should the old water mains need to be replaced. Cl Lavine introduced Ray Burger, the town’s new planner. R Burger said he is happy to be here and invited to the public to visit him at any time. Joe Wilson, 75 Hunt Hill Road, commended the board for putting off the vote on the amendment. In the vein of public meetings, it would be wonderful to have a public workshop about what the changes are to the zoning law that are proposed and how we might come to a superior result than we have now. You’re not just word smithing a couple of sentences buried in a ten page document. What you are actually doing as you decide on the issues of infrastructure facilities and services that are allowed in the town and the scope of what is allowed in the town in the name of utilities, is making decisions (with regard to this pipeline) on the property values of 90 plus residents of the town. You’re making decisions on the amount of CO2 and methane pollution that will be within the town and across the county. You are making decisions about the kind of energy sources that will be used in the town and with the implications of their use throughout the county, and because NYSEG is proposing a permanent easement, you are making decisions about both now and for a long time into the future. What we need is a public workshop to go over these things for all of us to have an equal chance to share our views and our concerns and our views for the future about the town energy, pollution and infrastructure for utilities. TB 4-16-15 Page 5 of 20 First, as has been alluded, in some lawyers’ opinions the current town law would not permit the installation of the proposed pipeline. You should give serious study to this before you amend the current law. If you pass all of the proposed changes to the current law, you will have made clear that the NYSEG line is allowed and you risk adopting language which could at minimum confuse the town’s current authority to regulate the proposed pipeline. The proposed amendments seem to add additional utility structures and activities to the list of land uses now allowed. Some of the crucial terms are not defined or do not have widely understood meanings. J Wilson said he is not sure to what extent each board member is aware of these additions and whether they intend them to be part of law going forward. Many of the crucial terms have not been explained or discussed in public. He said he has probably spent the most time talking to staff members and elected representatives and there are numerous interpretations of the proposed changes and projections of the effects they will have. The amendment is not ready for passage and the board has made a wise decision to not move forward at this point. The proposals and effects they will cause should be dealt with in a public workshop and not behind closed doors or in late night sessions where they are bandied about quickly when everyone is tired and wants to go home. These are major decisions about what is acceptable in the town regarding utility infrastructure, activities and services. You are making decisions about individuals’ private properties that will last forever. You are making decisions about greenhouse gas emissions and energy resources within the town and county -wide for now and far into the future. Take your time, involve the residents as they have not been to date, and make the wisest decisions possible regarding the town and the county’s future. (statement submitted and attached) Linda Parks, West Dryden Road, said she echoes J Wilson’s remarks. She was at the agenda meeting a week ago and stayed until 10:30 p.m. The board was discussing these changes at 10:30 or later at night. Please make the process transparent; make it accessible; and let’s do it right. Let’s protect everyone in this town. Cl Lavine stated that tonight was the night that was set aside to make this open and talk about it. There was never an intention to vote on it tonight, and there was never any lack of transparency or late night meetings. This was the night set aside, and she finds it painful to be attacked for trying to be evasive, while trying to do it right. This may not be perfect, but this was a fair attempt to come up with a fair approach to do what the board was asked by the public. Genevive DeClerk, 713 W Dryden Rd, said she was alarmed that this document appeared on the website without any public hearing beforehand. Supv Sumner explained the process. When the board is ready to discuss a law publicly it is introduced in the exact form that it will be considered. That was done last month and a public hearing was scheduled for tonight and it was put on the website. Tha t is standard procedure for any law that will be discussed. G DeClerk - As a property owner on West Dryden Road she is in the path of the NYSEG transmission gas line and asked the board to please give the issue very careful attention. This is not a ho-hum distribution line. This is a Trojan horse. Once they have forcibly taken rights away from the properties in the path of this pipe line, Iberdrola, a foreign corporation, will run whatever volume of gas they please through that pipe. A ten inch pipe of their description will be capable of running at rates many times greater than 700,000 cubic feet per hour, which is a lot to begin with. It is her understanding that once the pipe is installed, they can easily get permits from the PSC to run it at much higher capacities. As a property owner and a tax payer, she sees this clearly as a land grab. For $1 they are supposed to give this private company exclusive and permanent rights of way on the front of their land. If they get their TB 4-16-15 Page 6 of 20 way, whether by easement or eminent domain, they can do all kinds of things with that right of way. They can put in other pipes, run other materials through the pipes, or sell the rights to others without the property owners’ permission. It is incumbent on the Dryden town board and town attorney to do everything in their power to protect them and this town from a dangerous and egregious precedent. It must be said that the idea of this being an action of a public utility for the public good is deceptive. This is a for profit company implementing it at the bidding of private interests of developers in Lansing. She asked the board to please t hink long and hard about who this pipe is really serving. If the board should decide that it would like to enter our Town of Dryden into a deal with this company, she asked them to please proceed with extreme caution. Not only should the town demand a full environmental review, but a full justification for this pipe including evidence that it truly cannot be done with pre - existing pipes in the county or with alternative energy options. Cliff Kraft, 983 W Dryden Road, said he has been a resident of the town for seventeen years and never came to a town board meeting until January. He came because he thought he needed help from the town. After hearing about amendments he concluded, along with some of his neighbors, that the town board needed help from them. They enlisted the services of an attorney because they were concerned about the proposed amendments. He c ongratulated the board on making a wise decision tonight. He asked the board to think about the NYSEG performance on January 15. They will do what’s legal, but not necessarily what is right. They have also learned through their attorney and discussion with other people that Federal law, State law, and the County board won’t regulate this pipeline. Mr Sigler said they are a bunch of obstructionists for trying to stop pipeline and development in town of Lansing. It isn’t a coincidence that this is considered to be the Lansing pipeline. What does Dryden get out of this pipeline? Nothing. Living on West Dryden Road they see people drive down the road so they can earn money and foster economic development in the Village of Lansing and the Town of Lansing. That’s exactly what this pipeline is for. Dryden is an afterthought. NYSEG doesn’t care about community. Their building on Route 13 and Route 366 has been emptying out. How many of those people that were here from NYSEG live here or know anything about community. They didn’t act like they know anything about the community. Remember the robot kept saying we negotiate with people one on one. She just repeated the same thing. Is this incompetence or arrogance on the part of NYSEG? There may be different conclusions, but either way, the Town Board is the last resort. It is the only entity that seems to have the legal authority to do anything about this pipeline. That’s why they are here tonight and will be at future hearings. They actually care about this community unlike the entity that wishes to construct this pipeline. That entity wishes we would go away and disappear. They want to pass gas through Dryden. That’s how much they care. He thinks this project stinks. Sue Stein, explained that some of the anxiety about the amendments may stem from the fact that NYSEG has made public to some people that they are now ready to pursue eminent domain against property owners on West Dryden Road. Amendments are unclear about the power of the board to protect them. This may be a test case. Across the northeast there is a lot of pipeline build out. It is really important that we get changes to the town law right. Changes may not be necessary for the board to enact its authority over this particular pipeline, but she doesn’t think this is the only pipeline that will come our way. But it might be a good place to get it right and use it as the test case. Deborah Cipolla Dennis, 964 W Dryden Road, said she appreciates everything the board is doing. She agrees with Joe Wilson that a workshop with the residents of the road and other interested community members would be helpful. They have a whole group of people coming to the meetings now who haven’t come before that may not understand the process. It TB 4-16-15 Page 7 of 20 would be helpful to have the process explained as we move through it. The stress and anxiety you’re hearing comes from fear. They see a corporation that really could care less and would be happy if they would go away. They are trying very hard to use the residents in a wa y that conflicts with the values of this community. When this entity wants to come through and steal our property and do something on our property that goes against our value system, it is scary and it hurts and you’re hearing that from people. She asked the board to have some compassion and understanding in that respect. She knows that the board likes to make things rock solid, so let’s make this rock solid. She believes the board has good intentions. Kathy Russell, 434 Snyder Hill Road, said she has lived there since 1997. She has voted for protecting Dryden from environmental hazards such as fracking. She is here voicing support for those on West Dryden Road who don’t want that pipeline. She is a retired SUNY Cortland faculty member. She specialized in philosophy of science, philosophy of language, and ethics. She would like to point out in the proposed definition of public utility delivery facilities it says local infrastructure that delivers an everyday necessity to the public at large. She wants to point out that everyday necessity is a big problem. If something is put in to cover peak demand that is not every day. What’s necessary to provide the citizens with electricity and heat is very controversial. In her work she studies logic, arguments, evidence, and conclusion. One of the things you can’t do is get to a conclusion from the evidence without background assumptions. Everyday necessity is a very troubling term because of the background assumptions being made here. If it is true that the pipeline is going to increase our carbon load by 28%, then it is necessary we not build it for the sake of the planet and the future of the environment. You have to be really careful about the words we choose. Paul Simonet, 9 Lewis Street, said he rarely comes to meetings because he trusts the town and its leadership. He’s watched from a distance, and it’s a vote of confidence if he’s not here. He doesn’t necessarily disagree with group from West Dryden Road, but rather is here philosophically. In his day job he builds signs. If he has a 10 by 10 by 10 hole in the ground, if it’s Dryden, Code Enforcement is going to look at it. It’s common sense. If you dig in the ground, a SEQR is required and that is in the purview of the Town. He thinks the town should keep this authority. He said you can do the right thing for the wrong reasons, or you can do the wrong thing for the right reasons, or you can do the right thing for the right reasons. He has a development and has done his best to have darkened sky technology. He is virtually LEED compliant without the certification. He has the best built road in Dryden and has worked with the Village to try and get a solar farm there. When people say one of the guiding principles for not doing a line is the carbon footprint, you can stop him from putting another house up because it will increase the collective load of our footprint. That is a f alse premise. He encouraged the board to be thoughtful about how they are making this decision. We can’t throw global things around and assume that they will hit the mark. Do it for the right reasons. He wants to know what’s in ground, but doesn’t want something so lofty that even people trying to do the right thing are penalized as a result of wrong thinking. Cl Lavine said that SEQR review now asks for alternatives in terms of energy use for constructing a project in a certain way. P Simonet said local home rule assumes you will know better than the feds or the state or the county, because you will know rig ht from wrong when you look at all the data. Sometimes it really is right to have natural gas. Sometimes it’s right to have solar power and make it a requirement. Government has to make the decision using the right thought process. Supv Sumner announced that she has asked Ray Burger, Planning Director, to arrange for SEQR training for board members and the public so people will have a better understanding of what can or can’t be accomplished with SEQR. She added that part of the challenge of the conversation is that we are answering different questions. The project the board is working on TB 4-16-15 Page 8 of 20 with this amendment is different than the project the audience was hoping for. This was not limited to the West Dryden project at all. It covers a number of other things in what she hopes will be useful ways. David Bravo-Cullen, Lee Road, said when considering gas lines as way of delivering energy, you should consider the alternatives. Maybe a gas line is the most efficient, least polluting way of delivering energy to someone. If there isn’t a gas line, maybe someone will have oil or LP gas delivered by a truck to their house. There are no regulation s about that and it’s a less safe method of delivery, is more expensive and adds truck traffic to the road. He asked the board to consider the whole picture and alternatives, and unintended consequences of buckling down on one particular kind of thing. Pat Dubin said she lives in the town of Caroline and is interested in the West Dryden Road pipeline because of what is happening to the residents on the pipeline and because it is affecting all of the county. It is another piece of fracking infrastructure; fracked gas will run through this pipeline. She is concerned about this and other projects in the area. She has followed this and heard the residents and read the minutes of the meetings. Residents have pleaded for assistance and the first noticeable action is to do a major revamping of the zoning law. She has learned that zoning is very important in these communities. She is a retired lawyer and has read this, and apart from the one thing you said you wanted to accomplish (no review for residential hookup) she wasn’t clear why the changes are being made. She wonders why they are being made now. The law is clear now that you could have this special use permit process for NYSEG right now. She wonders why the board doesn’t pass a resolution that they will require that before they go forward. She said forget about the rest of the community who isn’t directly affected, but not entirely because a lot of people have an interest. The process has been difficult for her to follow. She was afraid that on what she considers to be a fairly complicated set of changes in the zoning law, the board would discuss them and resolve it. She wondered about the process at a very difficult time for people in the community. People are concerned about the massive amount of gas that will be in the community. She would like an information session and for the board to explain why this is needed, not for the public to come and guess what the board is thinking. She feels like it is bending over backwards for NYSEG and ignoring the people in the community who keep coming to the board for help. She is uncomfortable with it. It is what this is doing to the community, and the fossil fuel issue and the global warming issue. This is a very liberal community and the board has support in the community. The town is the leader in the fracking for the local area and the state and are looked to beyond. The board is in the same position now with this fracking infrastructure. The town can take the same leadership position and she hopes they do. Joanne Cipolla Dennis, 964 West Dryden Road, said she appreciates the board tabling the amendments. It is a smart thing to do in light of the language that lessens residents’ protections. This board has taken a fantastic stance against fracking and been a leader in the state and in the world, receiving 20,000 comments from around the world for its leadership. The rest of Tompkins County and New York is depending on the board to hang with that and create another precedent because we aren’t going to have any more gas infrastructure in the town of Dryden because we don’t want to impact residents’ health with radon laced fracked gas. Though happy with most of the service provided by the board she has c oncerns. The reason for anxiety among her neighbors is that they have been asking pertinent questions about legalities for several months. The town attorney hasn’t come forward with that information in any transparent way and the board has forced people to hire an attorney to find out the legalities that affect them, their property values and whether they will have peaceful enjoyment of their property in the future. She knows what the fossil fuel industry is capable of and they will do things behind our back with our elected officials without the public knowing about it. She knows it has been happening and cautioned that there will be an election in a few months. She expects the most protection that board members are allowed to give by law as TB 4-16-15 Page 9 of 20 a member of the board. She hopes that continues or she won’t be holding a sign or voting for particular candidates. Dave Bradley, South Street, Village of Dryden, wanted to correct a couple of misstatements about the necessity of a methane transmission line through the Town of Dryden to Lansing. It is true that town of Lansing people will be the customers. If you thought in strictly economic terms, you could tax this get money for the transmission of this methane. This methane is going through a vastly oversized pipeline. It is easily capable of delivering 2 million cubic feet per hour and more if they upped the pressure. It is more than enough to power the Cayuga plant which would be the only logical use for it. This pipeline will require a 15 million dollar expenditure. That means it needs at least 2 million a year in revenue to do this. Iberdrola doesn’t lose money on projects anymore. They are a mega corporation and get most of their money from the sale of wind powered electricity in Spain. The natural gas part is basically a legacy and rapidly obsoleting portion of the corporation. They really don’t care that much about it. This little part of the corporation is trying to justify its existence. They are not allowed to lose money. In order to justify their investment they need to have a lot of gas flowing through this pipeline and get 2 million a year in profit. Most of the reason for this pipeline is to provide heat for residences and further suburbanize Tompkins County. You can do this use using renewable energy. It is a more 21st century approach that provides a lot more local jobs and more local economic activity. The board discussed closing the public hearing and said further comments could be provided to the Town Clerk Bambi Avery for distribution to the board. B Avery said she understands there are issues with the website and we have lost the staff that were best at keeping it updated. She is legally charged with being keeper of the records and can assist residents with access to documents, etc. On motion made, seconded and unanimously carried, the board closed the public hearing on the amendment to Local Law #1 of 2015 at 8:30 p.m. Supv Sumner said people are always free to comment. It won’t officially be part of the record of this particular amendment, but the board is always happy to hear ideas and opinions. Cl Lavine said they could be incorporated into whatever changes are made to the amendment. Audience members reiterated that they would like a public workshop/meeting prior to any amendments. Supv Sumner closed the hearing on the public interest order at 8:33 p.m. PUBLIC HEARING AMEND LOCAL LAW #1 OF 2007 Supv Sumner opened the public hearing at 8:34 p.m. and explained that this was an administrative correction to the building code law. There were no comments. HIGHWAY DEPARTMENT/DPW Rick Young, Highway Superintendent, said they have been cleaning up roads from winter and sweeping the sand. Shoulders and ditches need cleaning. They are patching the roads extensively. There is a lot of road damage and water damage this year. They are also working on insulating the highway garage. R Young would like permission to purchase a truck and hire a DPW maintenance worker. He would like to continue with the buy-back program they started last year with the skid steer and get a broom attachment for it. Truck #9 will be sold to Freeville. This new pickup truck was discussed at budget season and will be purchased off state bid. Budget approval is necessary prior to purchase. Delivery is expected to take three to four months. TB 4-16-15 Page 10 of 20 RESOLUTION #67 (2015) – AUTHORIZE PURCHASE OF PICKUP TRUCK Cl Sloan offered the following resolution and asked for its adoption: RESOLVED, that this Town Board hereby approves the purchase of a new 2015 Chevrolet pickup truck off state bid at a price not to exceed $50,000.00. 2nd Cl Leifer Roll Call Vote Cl Sloan Yes Supv Sumner Yes Cl Leifer Yes Cl Lavine Yes RESOLUTION #68 (2015) – AUTHORIZE SALE OF DUMP TRUCK Supv Sumner offered the following resolution and asked for its adoption: RESOLVED, that this Town Board hereby authorizes the sale of a 2013 Ford Dump Truck, VIN #1FD0X5HT6DEB53106, to the Village of Freeville for $69,000.00. 2nd Cl Sloan Roll Call Vote Cl Sloan Yes Supv Sumner Yes Cl Leifer Yes Cl Lavine Yes The Highway Superintendent would like authorization to purchase a new skid steer under the buy-back program, together with a broom attachment. This skid steer is larger than the old one, and the attachments they already have will fit. R Case said account DA5130 will be used for both the truck and skid steer and the purchases were budgeted for. RESOLUTION #69 (2015) – AUTHORIZE PURCHASE OF SKID STEER AND BROOM ATTACHMENT Cl Leifer offered the following resolution and asked for its adoption: RESOLVED, that this Town Board hereby authorizes the purchase of a new skid steer, under the buy-back program, and broom attachment at a cost not to exceed $27,931.00. 2nd Cl Sloan Roll Call Vote Cl Sloan Yes Supv Sumner Yes Cl Leifer Yes Cl Lavine Yes DPW maintenance worker – R Young said he has talked with the bookkeeper/hr person and it is classified as maintenance worker. If a new position is created afterward to include a requirement for water testing, all employees would be eligible to take a test for it. R Case noted that right now we don’t need a water operator. The new hire is licensed to do all testing that would be required and they can do it within the position. If in the future the name of position changes, any one could apply and move up. TB 4-16-15 Page 11 of 20 RESOLUTION #70 (2015) – AUTHORIZE MAINTENANCE WORKER Supv Sumner offered the following resolution and asked for its adoption: RESOLVED, that this Town Board hereby approves the hiring of an additional maintenance worker for the Department of Public Works. 2nd Cl Leifer Roll Call Vote Cl Sloan Yes Supv Sumner Yes Cl Leifer Yes Cl Lavine Yes R Young said he will be meeting with Andy Sciarabba next week regarding Yellow Barn Water District and doing an inventory. CITIZENS PRIVILEGE Martin Hatch asked if closing the public hearing on the zoning amendment meant that the board would take no more comment. The board told him no action would be taken and there would be another public hearing, whether on this language or other language. Joanne Cipolla Dennis said she got another bill from NYSEG last week and their bill for the last 11 months has been zero. That is because they have solar panels that provide more than enough power for their house and NYSEG has to pay them the overage. She w ants all of her neighbors county-wide to have the same advantage. She said the guy down the road is building a big apartment complex that will not use fossil fuels. There will be solar farms in the next few years that will provide a lot of power, and we don’t need gas to do that. When we can provide what we need in a clean way at a cheaper price that doesn’t impact the environment, the health of the inhabitants, the future or impose eminent domain on anyone, why would we possibly do the opposite? She encouraged the new planner to plan for the future and use only future friendly options and create a lot of jobs. The solarize project they brought the last two years to Tompkins County created 50 full time living wage permanent jobs for people who live here. NYSEG can be a partner if they understand what our needs are and what we are and aren’t going to do. They can make it easy or they can make it very hard. Marty Hatch said that two Planning Board members have presented, as part of the comprehensive plan review, sustainability energy guidelines similar to the residential and commercial guidelines. They are looking forward to working on those with the planner. It is important since we are so far ahead and have such a well educated group in terms of energy, conservation and sustainability in Dryden, that we take advantage of that and do our best to correct the pell mell lemmings off a cliff approach that is forced on Americans in energy consumption. He thinks the town should adopt those guidelines as central to the comprehensive plan and put them in the zoning. The best way to do that is to s top the revision of zoning to permit wrong uses. Jim Skaley, 940 Dryden Road, with respect to the Varna C ommunity development plan, read the attached statement. He has been speaking with Fernando deAregon about this project and explained how projects move to the top of the list. Supv Sumner said she has been in the process of negotiating with the DOT about their plans for repairs and upgrades to Route 366 and the town’s need to replace some water and sewer infrastructure. She expects that things will move along a bit quicker now that we have a planner on board again. TB 4-16-15 Page 12 of 20 Supv Sumner reported that the highway capital status report includes the Malloryville Road bridge. There has been discussion about making it a two lane bridge in which the town portion of the cost would increase significantly. Red Mill Road bridge is still on the capital project status report, but it never moves up the list. There were no comments or questions with respect to the proposed amendment to Local Law #1 of 2007, which amends the definition of inspector. Supv Sumner closed the hearing at 9:06 p.m. RESOLUTION #71 (2015) – ADOPT LOCAL LAW #2 OF 2015 AMENDING LOCAL LAW #1 OF 2007 – TECHNICAL CORRECTIONS Supv Sumner offered the following resolution and asked for its adoption: RESOLVED, that this Town Board hereby adopts the following local law and directs the Town Clerk to file the same with the Secretary of State of the State of New York: A local law to provide technical corrections to Local Law No. 1 of the year 2007 Local Law No. 1 of the year 2007, a local law providing for the Administration and Enforcement of New York State Uniform Fire Prevention and Building Code and Other Town of Dryden Local Laws and Ordinances, is hereby amended as follows: 1. The definition of “Inspector” in Section 2. Definitions is hereby amended to read: “Inspector” shall mean an inspector appointed pursuant to subdivision (d) of section 3 of this local law. 2. Subsection (e) of Section 15. Violations is hereby amended to read: (e) Remedies Not Exclusive. No remedy or penalty specified in this section shall be the exclusive remedy or remedy available to address any violation described in this section, and each remedy or penalty specified in this section shall be in addition to, and not in substitution for or limitation of, the other remedies or penalties specified in this section, in section 6 (Stop Work Orders) of this local law, in any other section of this local law, or in any other applicable law. Any remedy or penalty specified in this section may be pursued at any time, whether prior to, simultaneously with, or after the pursuit of any other remedy or penalty specified in this section, in section 6 (Stop Work Orders) of this local law, in any other section of this local law, or in any other a pplicable law. In particular, but not by way of limitation, each remedy and penalty specified in this section shall be in addition to, and not in substitution for or limitation of, the penalties specified in subdivision (2) of section 382 of the Executive Law, and any remedy or penalty specified in this section may be pursued at any time, whether prior to, simultaneously with, or after the pursuit of any penalty specified in subdivision (2) of section 382 of the Executive Law. 3. This local law shall take effect upon filing with the Secretary of State. TB 4-16-15 Page 13 of 20 2nd Cl Leifer Roll Call Vote Cl Sloan Yes Supv Sumner Yes Cl Leifer Yes Cl Lavine Yes COUNTY BRIEFING Martha Robertson said she currently serves on the Planning, Energy and Environmental Quality Committee and they are working on a couple of things. The County Planning Department has decided they would like to put some muscle behind some trails projects in the county and work with municipalities where there may be some problems. One of the ones identified is the East Hill Recreation Way extension to Varna. She expects that someone from the county will be in touch with town staff. It’s hoped they can help with Game Farm problem. Supv Sumner is hoping to go ahead with the scoping and design of the Stevenson Road to Mt Pleasant Road part, and iron out the DEC property part when the rest of the trail is in place. Cl Sloan said we should build what we can and not worry about the gaps initially, and then proceed. Supv Sumner said we need to give some thought to the usefulness of isolated segments. Stevenson to Varna will work quite well. Cl Sloan would like the trail completed along the railroad bed and is concerned about compromises that might lock us in to something less near or around the Game Farm. It was noted there is a meeting next Saturday at the highway offices with Design Connect to discuss the Varna to Freeville portion. M Robertson reported that Cooperative Extension is close to final stages of a revision of the County Ag and Farmland Protection Plan (last updated 1998). They expect a draft to be complete this month and then it will go out for public review. The new state budget has new money for the Purchase of Development Rights programs. There will soon be information on the county and Cooperative Extension web sites. There have been a number of updates about energy. The PSC, under a program called REV, is requiring utilities to do demonstration projects. NYSEG/Iberdrola has chosen this area for their location for a demonstration project. It’s called the Energy Smart Community Project. In preparation for that people from Cooperative Extension, County Planning and Iberdrola/NYSEG attended a week-long e-lab accelerator workshop in Utah along with 14 other teams from around the country to work on the vision for this. She said she doesn’t think NYSEG and Iberdrola are necessarily on the same page. She has explained to representatives the contradiction with the West Dryden Road project. There will be a lot of community outreach about this and they are building a website. She said this is something where we can help drive the process. The other program they heard about was the NY Prize, an opportunity for state funding of micro grids around the state. The Ithaca Area Wastewater Treatment Plan and Tompkins County are each putting in an application. They have put out an RFQ for a consultant and have chosen a firm to help with the grant which is due in a week or so. The idea is to build a micro grid around the business and technology park, including the airport, 911 center and health facilities south of Route 13. Initially it is about electricity but could expand to include combined heat and power. Mike Lane said the legislature will hold two public hearings next week. The first one is on a local law prohibiting the disposal of fracking waste on highways or in waste treatment plants (5:30 p.m. on Tuesday). The second is on a local law allowing sale of sparkling devices (wooden only, party poppers, cone fountains, spike f ountains) that are no longer excluded under state legislation. Individual counties may decide whether to allow these sales. It would TB 4-16-15 Page 14 of 20 only be allowed for six weeks before July Fourth and two weeks before New Years. Fire officials across the state have opposed this legislation. The County has settled labor negotiations with their blue collar labor unit and is still in negotiations with other units. They believe they reached an agreement that is good for the employees and the people of the county. TCCOG and the County Administrator, Joe Mareane, have been working on the state required report to show a 1% savings to qualify for checks to come to homeowners from the state. J Mareane is pretty much convinced that it will be difficult for each separate municipality to show the 1% savings. He is recommending putting this together in one big report to be used by each municipality. Examples include certain labor negotiations and other things. There are two open commissioner seats in the county; one for Personnel Commissioner and one for Mental Health Commissioner and they are trying to hire for both vacancies. There have been three responses to the Request for Proposals for the old library. One is proposing keeping the building and converting it to condominiums. Two propose taking the building down and putting up new structures, one for senior apartments and the other for market apartments. The committee is reviewing those and will have presentations from the developers and hopefully make a recommendation before June to the full legislature. Each of them proposes to pay the appraised value of the property to the county. Mike Lane invited town officials to attend county legislature meetings occasionally and give a brief report on what’s happening in the town. TOWN CLERK RESOLUTION #72 (2015) – APPROVE MINUTES Supv Sumner offered the following resolution and asked for its adoption: RESOLVED, that this Town Board hereby approves the meeting minutes of March 12 and March 19, 2015. 2nd Cl Leifer Roll Call Vote Cl Sloan Yes Supv Sumner Yes Cl Leifer Yes Cl Lavine Yes UNFINISHED BUSINESS Supv Sumner explained that the total cost of this project is 6.9 million and the Town of Dryden’s share will not exceed $131,274. There is no bonding req uired. The funds have been set aside. RESOLUTION #73 (2015) – ADOPT PUBLIC INTEREST ORDER IAWWTF INFLUENT BUILDING IMPROVEMENTS Supv Sumner offered the following resolution and asked for its adoption: RESOLVED, that this Town Board hereby adopts the following Public Interest Order TB 4-16-15 Page 15 of 20 In the Matter of the Proposed Improvement Project Pursuant to Town Law §202-b for the Wastewater Treatment Plant in the City of Ithaca serving the Town of Dryden known as the Influent Building and Dewatering Project PUBLIC INTEREST ORDER WHEREAS, a plan, report and map have been duly prepared in such manner and in such detail as heretofore has been determined by the Town Board of the Town of Dryden, Tompkins County, New York, relating to the construction, pursuant to Town Law § 202-b of improvements to be known and identified as the Influent Building and Dewatering Project, and hereinafter also referred to as “the Improvement Project,” to provide improvements to the present wastewater treatment plant in the City of Ithaca owned and managed jointly by the City and Town of Ithaca and Town of Dryden, which wastewater treatment plant provides wastewater treatment services for the Town sewer districts served by such wastewater treatment plant, such improvements to be construct ed and owned by the City and Town of Ithaca and Town of Dryden, and WHEREAS, said plan, report and map have been prepared by GHD Consulting Services, Inc., Professional Engineers, duly licensed by the State of New York and have been filed in the office of the Town Clerk where they are available for public inspection, and WHEREAS, the area of said Town determined to be benefited by said Improvement Project consists of the entire area of said Town sewer districts served by the wastewater treatment plant in the City of Ithaca, and WHEREAS, the proposed Improvement Project consists of the improvements set forth below, as more particularly shown and described in said plan, report and map presently on file in the Office of the Town Clerk to wit: replacement of influent screens, installation of an odor control system, procurement and installation of dewatering equipment and replacement of lighting and painting of the interior walls of the influent building, and WHEREAS, the Town Board of the Town of Dryden adopted an Order on March 19, 2015, calling a public hearing upon said plan, report and map and the question of the TB 4-16-15 Page 16 of 20 providing said Improvement Project, and the question of executing any related agreement, and to hear all persons interested in the subject thereof, all in accordance with the provisions of Town Law §202-b and applicable provisions of the General Municipal Law and Local Finance Law, and WHEREAS, said public hearing was duly held on April 16, 2015 at the place and at the time set forth in said Order and all persons interested in the subject thereof were heard concerning the same, and WHEREAS, the construction of the proposed project has heretofore been determined to be an "Type II Action" pursuant to the regulations of the New York State Department of Environmental Conservation promulgated pursuant to the State Environmental Quality Review Act, the implementation of which as proposed, the Town Board has determined, will not require any environmental review; and WHEREAS, it is now desired to authorize the improvements to be known as the Influent Building and Dewatering Project, NOW, THEREFORE, BE IT RESOLVED, by the Town Board of the Town of Dryden, Tompkins County, New York, as follows: Section 1. It is hereby determined that it is in the public inter est to make the improvements hereinafter described and such improvements are hereby authorized. The proposed area hereby determined to be benefited by said Influent Building and Dewatering Project is all of the Town of Dryden sewer districts served by the jointly owned and managed wastewater treatment plant in the City of Ithaca. Section 2. The proposed improvements consist of the replacement of influent screens, installation of an odor control system, procurement and installation of dewatering equipment and replacement of lighting and painting of the interior walls of the influent building. Section 3. The maximum proposed to be expended for the aforesaid improvements is $6,930,000.00 of which the Town of Dryden’s share is not to exceed $131,274.00. TB 4-16-15 Page 17 of 20 Section 4. The method of financing to be employed by said Town of Dryden is as follows: Ithaca Area Wastewater Treatment Facility co-owner City of Ithaca will issue bonds to pay for the City of Ithaca’s share of the improvements cost at the said Facility as w ell as for the Town of Dryden’s share of the improvements cost. The Town of Dryden will not co-issue or be liable on the bonds. The Town of Dryden will reimburse the City of Ithaca through a contract between the City of Ithaca and the Town of Dryden. The Town of Dryden’s contractual payments to the City of Ithaca will be paid by expenditure of current revenues and surplus funds from sewer rents and charges from the Town of Dryden sewer districts served by the said Wastewater Treatment Facility. Section 5. This order shall take effect immediately. 2nd Cl Leifer Roll Call Vote Cl Sloan Yes Supv Sumner Yes Cl Leifer Yes Cl Lavine Yes NEW BUSINESS VERIZON SPECIAL USE PERMIT 1387 DRYDEN ROAD Supv Sumner explained that Verizon has applied for an amendment to their special use permit to allow for a change of equipment on the tower at NYSEG. There will be three radio heads installed behind existing antennas. County review has been received indicating no impact. RESOLUTION #74 (2015) – APPROVE AMENDMENT TO VERIZON SPECIAL USE PERMIT Supv Sumner offered the following resolution and asked for its adoption: WHEREAS, Verizon is planning to upgrade on a tower at 1387 Dryden Road, and WHEREAS, the upgrade consists of three remote radio heads beh ind existing antennas, and WHEREAS, the upgrade has no structural or visible impact, and WHEREAS, the applicant has met all the requirements of Local Law #2 of 2006 Section 18(d), now, therefore, be it RESOLVED, that this Town Board hereby approves the amendment as shown on Sheet C500 in the special use amendment application packet. TB 4-16-15 Page 18 of 20 2nd Cl Leifer Roll Call Vote Cl Sloan Yes Supv Sumner Yes Cl Leifer Yes Cl Lavine Yes Ithaca Area Wastewater Treatment Plant Supv Sumner explained that the Ithaca Area Wastewater Treatment Plant has just completed a pilot study on a considerably more energy efficient process which yields a higher carbon sludge that is useful for both methane electric generation and subsequent land application. Now they need another $128,650.00 for expanding that to a full scale project that could ultimately generate a lot of funding for doing a huge upgrade. The Town’s share of that expense is $2,547.27. RESOLUTION #75 (2015) – REQUEST FUNDING FOR ENGINEERING SERVICES AGREEMENT FOR ENHANCED PRIMARY TREATMENT FEASIBILITY STUDY Supv Sumner offered the following resolution and asked for its adoption: WHEREAS, the Ithaca Area Wastewater Treatment Facility (IAWWTF) requires frequent upgrading to meet the rigorous water quality and clean energy standards embodied in its long range planning goals, and WHEREAS, IAWWTF engineers have completed a pilot study of a new enhanced primary treatment technology developed in New York State by Clear Cove Systems, and WHEREAS, further study is necessary to evaluate the facility improvements and preliminary cost estimates for implementing a full scale system and improvements to ancillary systems, and WHEREAS, GHD Engineers has submitted a proposal for performing the study for an amount not to exceed $128,650, and WHEREAS, the cost of the study will be shared among IAWWTF owners as follows: Municipality Percentage Project Cost City of Ithaca 57.14 $73,510.61 Town of Ithaca 40.88 52,592.12 Town of Dryden 1.98 2,547.27 $128,650.00 Therefore be it RESOLVED, that the Town of Dryden authorizes establishing CP 410J and transferring an amount not to exceed $128,650 from Capital Reserve fund to CP 410J to fund the proposed agreement with GHD Engineers, and be it further RESOLVED, That Town of Dryden hereby approves the attached Agreement among City of Ithaca, Town of Ithaca, Town of Dryden and GHD Consulting Services, Inc. contingent upon approval by all owners and pending attorney review. 2nd Cl Sloan Roll Call Vote Cl Sloan Yes TB 4-16-15 Page 19 of 20 Supv Sumner Yes Cl Leifer Yes Cl Lavine Yes Parks & Trails Maintenance Guidelines – Supv Sumner thanked the Conservation Board and said she thought this was a wonderful idea. These guidelines will help to preserve habitat and scenic beauty. This will help to treat the trails less like a major roadway and more like a park. The Highway Superintendent has reviewed this and stressed that this is a guideline and perhaps at times the DPW may have to do things that are not within the guideline. RESOLUTION #76 (2015) – ACCEPT PARKS & TRAILS MAINTENANCE GUIDELINES Supv Sumner offered the following resolution and asked for its adoption: WHEREAS, the Conservation Board has recommended that the Town Board accept the Parks & Trails Maintenance Guidelines prepared by them, and WHEREAS, the Highway Superintendent, Department of Public Works and staff will adhere as closely as reasonably possible to these guidelines, it is hereby RESOLVED, that the Dryden Town Board hereby accepts the Parks & Trail Maintenance Guidelines dated March 31, 2015 and encourages the Highway and DPW Superintendent to follow them as closely as reasonably possible. 2nd Cl Leifer Roll Call Vote Cl Sloan Yes Supv Sumner Yes Cl Leifer Yes Cl Lavine Yes Mike Lane noted that Kathy Elliott passed away recently. She came to the community ten years ago and volunteered at Historical Society and Café and with other organizations. She was a retired teacher, had quite of sense of humor, and a completely different political agenda than he did. He is sorry to have lost her as a neighbor on the street and as a person who cared about her town. Supv Sumner said there will be a celebration of her life on Saturday. Supv Sumner reported that she has worked many hours with Bolton Point over the past month to interview and hire a new general manager. They interviewed two internal and three external candidates. They hired the current production manager Joan Foote. Cl Leifer reported that he met with Rick Young regarding the road maintenance plan that the Comptrollers Office has asked us to put together. They have determined that the current software can cost out jobs that have been done, but won’t work for projections. He has called to see if the State has something we can use. They have information from the Delta road study and had gps work done a few years ago for stormwater basins that will need to be worked into this. R Young is open to working with Planning Department to get this done. It will help him to pinpoint exactly where work has been done. They also discussed cataloging roads by traffic count and should be able to get some basic equipment that isn’t too expensive. Perhaps they can use radar equipment to deter speed and also gather information that can be used when applying for state funding. TB 4-16-15 Page 20 of 20 Cl Lavine has been attending TCCOG and SJS meetings for the wastewater treatment plant. She also attended a resilient water presentation and was very impressed with the information there. There being no further business, on motion made, seconded and unanimously carried, the meeting was adjourned at 10:00 p.m. Respectfully submitted, Bambi L. Avery Town Clerk -------------------------------------------------------- In the Matter of a Proposed Amendments To the Town of Dryden Zoning Law Occasioned by the Proposed MEMORANDUM OF LAW Lansing/Freeville Reinforcement Project By Concerned Citizens of Dryden -------------------------------------------------------- OVERVIEW: I. Introduction. II. An Amendment to the Zoning Law Has Been Introduced in Response to the Proposed Lansing/Freeville Reinforcement Project. 1. The Proposed Amendments Are Unnecessary, As The Proposed Pipeline Would Clearly Require a Special Use Permit Under the Current Zoning Law. 2. Late Changes in the Proposed Amendment Constrain the Public’s Ability to Provide Effective and Relevant Comment. 3. The Proposed Amendments Fail to Specify that Public Utility Development Exempt From Special Use Permits Requirements Must Deliver Utilities Only to Residents and Businesses in the Town of Dryden. 4. The Proposed Amendments Fail to Reflect the Realities of Natural Gas Pipeline Permitting. 5. The Board Should Consider Whether Proposed Amendments Must be Reviewed Under SEQR Before The Town Board May Vote on Them. 6. The Proposed Amendments May Not Be Consistent With The Town’s Comprehensive Plan. III. Factual Background Regarding the Zoning Law and Proposed Pipeline. IV. The Proposed Pipeline Would Not be Regulated Under Federal or State Law. 1. Lack of Federal Regulation 2. Lack of State Regulation 3. Considerations by the Town Board Relevant to the Lack of Federal/State Regulation V. The Existing Franchise Agreement Between the Town of Dryden and NYSEG Provides Guidance On How the Zoning Law Should Be Clarified: 1. Factual Background Regarding the Franchise Agreement. 2. The Franchise Agreement Contains Provisions that Protect the Rights of the Town Board, Residents and Businesses in the Town of Dryden: a. Gas Conducted Under the Agreement Must Only Benefit Town Residents and Businesses. b. Siting of Infrastructure Must be Determined by the Town Board. c. Indemnification of the Town by NYSEG. d. NYSEG Must Secure Permits. e. Preservation of Character and Desirable Aesthetic Features of the Community VI. Conclusions. 1. In the event that the Board attempts to effect any amendments to the Zoning Law that will remove the Special Use Permit requirement with regard to public utility development, it would be well advised to ensure that the amendments make clear that allowed public utility development must only be for the benefit of Town residences and businesses, that the amendments reflect the realities of public utility regulation, a full SEQR review is conducted and the amendments’ consistency with the Town’s Comprehensive Plan is considered. 2. In the event that the Board determines the proposed pipeline to be an allowable use, the Board would be well advised to conduct a searching and thorough Special Use Permit review and impose conditions that will ensure the safety of residents, and preserve the character, desirable aesthetic features and unique natural assets of the Town. I. INTRODUCTION This Memorandum of Law (“Memorandum”) is submitted on behalf of a group of Dryden Town residents (the Concerned Citizens of Dryden, or “Concerned Citizens”), including individuals who would be potentially affected by the above-captioned amendments and who are concerned about energy development, land use and the assurance of public participation in decision-making. New York State Electric and Gas Corporation (“NYSEG”) and its parent corporation, Iberdrola USA (“Iberdrola”) have proposed “the Lansing/Freeville reinforcement project along West Dryden Road.”1 This Memorandum highlights some of the powerful protections afforded to the citizens of Dryden by the Town of Dryden Zoning Law (“Zoning Law”) and the Franchise Agreement that NYSEG and the Dryden Town Board (“Board”) entered into on August 20, 1951 (“Franchise Agreement”).2 The Concerned Citizens urge the Board to preserve and enforce these protections with regard to any proposed public utility development, and to ensure that identical protections are included in any amendments or laws enacted or future agreements entered into by the Board. This Memorandum presents first the Concerned Citizens’ position regarding the proposed amendments to the Zoning Law, in an effort to prioritize information that is immediately relevant to the Board. However, the Memorandum goes on to explain background that the Board would be well advised to consider before deciding to take further action in this case. II. Amendments to the Zoning Law Have Been Proposed in Response to the Proposed Lansing/Freeville Reinforcement Project. On March 19, 2015, the Dryden Town Board adopted a resolution to introduce an amendment to Local Law #1 of 2015, and set a public hearing on the matter for April 16, 2015.3 Upon information and belief, the amendments were subsequently revised at the Town Board’s April 9, 2015 Agenda Meeting. The amendments initially introduced would remove the definition of “Public Utility” from the Zoning Law, and add two new definitions for “Public Utility Delivery Facilities” and “Public Utility Structures.” The proposed amendments would also make Public Utility Delivery Facilities a permitted use in all Use Zones in the Town of Dryden and Hamlet of Varna.4 Furthermore, the amendments proposed to repeal Subsection E of Section 900, and to enact in its place: (1) Nothing contained in this Zoning Law shall be construed to require a Special Use Permit for repairs or replacements in kind of Public Utility Delivery Facilities or for individual lot service connections by a public utility corporation. (2) Facilities or activities of a public utility corporation regulated by FERC (the Federal Energy Regulatory Commission), the PSC (the New York Public Service Commission), or which involve the extension of a Public Utility Structure for a distance of less than 1,000 feet are not subject to regulation by this Law.5 The Concerned Citizens of Dryden urge the Town Board to either vote down or revise the amendment to preserve protections currently available under the Zoning Law, conduct any review required under NY SEQR before proceeding to a public hearing and consider whether the proposed natural gas pipeline is consistent with the Town’s Comprehensive Plan. 1. The Proposed Amendments Are Unnecessary, As The Proposed Pipeline Would Clearly Require a Special Use Permit Under the Current Zoning Law. Upon information and belief, the Board has introduced the proposed amendments primarily to clarify that NYSEG must obtain a Special Use Permit before they could construct the Lansing/Freeville Reinforcement Project. There is no confusion under the Zoning Law that the West Dryden Road portion of the Lansing/Freeville Reinforcement Project would either: 1. require a Special Use Permit6 or 2. be prohibited as a use not specifically authorized.7 According to the Town of Dryden Zoning Map, the portion of West Dryden Road where NYSEG proposes to install the natural gas pipeline is located in Rural Residential and Rural Agricultural Use Zones.8 According to Section 500 of the Zoning Law: A. structures and land in the Town may only be used in accordance with the Allowable Use Groups Chart (Section 501), and B. the Planning Department shall deny any application for a use of land that does not fall into one of the allowable uses.9 Assuming that the proposed natural gas pipeline were to be located on West Dryden Road and classified as public utility development, a Special Use Permit would be required according to the Allowable Use Groups Chart.10 In the Zoning Law, “Public Utility” is defined as: Infrastructure and services that supply an everyday necessity to the public at large, such as Public Water and/or Public Sewer facilities, electricity, natural gas, and telecommunications. A Public Utility may be owned by a municipality or a private entity, or a combination thereof.11 As explained further below, in absence of a Special Use Permit Review by the Board, the proposed pipeline would likely be constructed without any regulation or oversight by Federal and State agencies. Thus, the Board would be well advised to place tight restrictions on the proposed natural gas pipeline. Furthermore, the easements that have been proffered to the West Dryden Road residents state that NYSEG would have “the right to assign this easement and right of way, or any part thereof, or interest therein.”12 Thus, having special conditions13 that would “run with the land”14 until such time that the pipeline falls under state or Federal regulation could ensure that standards the Board believes to be necessary for the pipeline’s safe construction, operation and maintenance would be followed not only by NYSEG, but any of NYSEG’s successors in interest. The details of the proposed project are considered to be “confidential.”15 The easements16 proffered by NYSEG to West Dryden Road residents do little to allow them or the Town to anticipate the pipeline’s potential impacts; or to plan for its construction, operation and maintenance. NYSEG does not even seem clear on the details of the project they intend to pursue.17 NYSEG has stated that not all property owners have agreed to sign the proffered easements, and the issue of public utility permitting seems yet to be discussed before the Board.18 Due to the potential impacts, public interest in the matter and the consequences that could result from faulty planning, execution and operation of a potentially unregulated natural gas pipeline; the Board would be well advised to ensure that the review process for development like the proposed Lansing/Freeville Reinforcement Project requires a Special Use Permit. 2. Late Changes in the Proposed Amendment Constrain the Public’s Ability to Provide Effective and Relevant Comment The Town has ostensibly complied with relevant public notice provisions in this matter.19 However, on April 16, 2015 the Board may not vote on changes reportedly made to the proposed amendment on and after the Town Board Agenda Meeting on April 9, 2015.20 As of the evening of April 14, 2015, the revisions have not been published on the Board’s website. The public will not be able to adequately research and prepare their comments until they have an opportunity to see the wording of the revised amendment proposals. Thus, the Board would be well advised to postpone not only the vote on the proposed amendments, but also the public hearing. 3. The Proposed Amendments Fail to Specify that Public Utility Development Exempt From Special Use Permits Requirements Must Deliver Utilities Only to Residents and Businesses in the Town of Dryden. The intent of the drafters is not clear from the text of the proposed amendments to the Zoning Law. From the nature of the amendments, it appears that the intent of the drafters was to remove the Special Use Permit application requirement for public utility construction to residences and businesses in the Town of Dryden that may be better addressed by building permits. If so, the Concerned Citizens urge the Board to reintroduce amendments clarifying that any public utility development not requiring a Special Use Permit must run for 1000 feet or less and also deliver utilities only for the benefit of Town residences and businesses. Due to the pipeline’s proposed engineering, it could conceivably fall within the proposed definition of “Public Utility Delivery Facilities.” The pipeline NYSEG proposes to construct on West Dryden Road would arguably be “local infrastructure,” in that a portion would be located within the Town of Dryden. Further, the letter of Iberdrola USA’s Mark Marini speaks of inability to provide incremental natural gas service and to accept additional applications for gas service, suggesting the necessity of the project. However, the “public at large” language contained in the proposed definition of “Public Utility Delivery Facilities” in the Zoning Law may create confusion about the public to whom the infrastructure must deliver the “everyday necessity.” Here, the public served would be located largely outside the town. The proposed natural gas pipeline would be used to transport commercial quantities of fracked gas through the town, for the benefit of individuals in Lansing and Ithaca. Any distribution of natural gas to Dryden Residents was an afterthought. At least one New York court has observed that situations occur where the interests of the “public at large” may be pitted against the interests of “local inhabitants.”21 The Board would be well advised to ensure that any amendment to the Zoning Law clarify that only residents and businesses in the Town of Dryden may be served by public utilities not subject to Special Use Permit requirements. 4. The Proposed Amendments Fail to Reflect the Realities of Natural Gas Pipeline Permitting. In Anschutz Exploration Corp. v. Town of Dryden, Hon. Philip R. Rumsey of Tompkins County Supreme Court ruled invalid, severed and struck a portion of the 2011 Zoning Ordinance amendments that sought to invalidate permits “issued by any local, state or federal agency, commission or board” that allowed for any of the prohibited fracking activities in the Town.22 In light of Hon. Rumsey’s action, it may not have been unreasonable for the Board to have proposed the most recent amendments to remedy aspects of the Zoning Law that they believed would run afoul of other permitting processes. The amendments may also have been proposed with the assumption that adequate oversight and public participation mechanisms exist in permitting processes for public utilities. The amendments could thus have been introduced as an effort to avoid the duplication of efforts by the Town Board where alternate permitting mechanisms exist. Furthermore, one could expect that part of the motivation for the amendment included a desire to avoid the time, effort and expense that the Board would expend in reviewing Special Use Permit applications and defending challenges to the Zoning Law by potential applicants. As discussed in greater detail below, despite the fact that NYSEG is regulated by the PSC, the construction of the proposed natural gas pipeline does not appear to require regulation under Federal or state laws and regulations. Accordingly, the wording of the proposed amendment to Zoning Law Section 900(E)(2) would appear to allow unregulated development of public utility facilities in the town, as long as the entities themselves are otherwise regulated by the PSC or FERC. Convenience to the Board and public utility companies may be part of the motivation for the proposed amendments. However by adopting the proposed amendments to the Zoning Law, the Town Board could effectively, if inadverdently, authorize the type of natural gas development that requires a Special Use Permit as a result of the 2011 amendments to the Zoning Ordinance, without any effective permitting or oversight. Most importantly, the engineering and scale of a project like the proposed pipeline is likely beyond Dryden Code Enforcement’s inspection capabilities. 5. The Town Board Should Consider Whether Proposed Amendments Must be Reviewed Under SEQR Before A Vote May be Called. Under New York’s State Environmental Quality Review (“SEQR”) regulations, “the adoption of changes in the allowable uses within any zoning district, affecting 25 or more acres of the district” creates a presumption that the Town must conduct a SEQR review as a lead agency. 23 And, the Town Board may not “approve” any amendment to the Zoning Law until it has “complied with” the SEQR process.24 A “determination of significance must be made by comparing the impacts which may be reasonably expected to result from the proposed action with the criteria listed in section 617.7(c)”25 of the SEQR regulations. Some of the criteria that may be relevant to the proposed pipeline include: (iv) the creation of a material conflict with a community's current plans or goals as officially approved or adopted; (v) the impairment of the character or quality of important historical, archeological, architectural, or aesthetic resources or of existing community or neighborhood character; (vi) a major change in the use of either the quantity or type of energy; (vii) the creation of a hazard to human health; (viii) a substantial change in the use, or intensity of use, of land including agricultural, open space or recreational resources, or in its capacity to support existing uses.26 Upon determining significance of the amendment for SEQR purposes, the Town Board must open the matter of the amendment for public comment and should determine whether to conduct a public hearing.27 The proposed amendments could conceivably affect any land or structures in the Town of Dryden, let alone an area exceeding 25 acres. And, the types of considerations required under SEQR are eminently relevant to the construction, operation, maintenance and impact of the proposed natural gas pipeline. Further, the public is clearly raising its collective voice to make the Board aware that significant public interest necessitates a full public hearing in this matter. The Board invested a tremendous amount of time and effort in deciding upon and effecting the prohibitions against natural gas development in the Town of Dryden. Accordingly, the Board would be well advised to be as cautious and informed in proposing and effecting any amendments to the Zoning Law. 6. The Proposed Amendments May Not Be Consistent With The Town’s Comprehensive Plan. The Town of Dryden Comprehensive Plan states various Goals and Objectives that may be frustrated by the proposed amendment’s position toward public utility infrastructure. The Board would be well advised to consider whether the proposed amendments would be consistent with the following: 1. The overall goal of this comprehensive plan is to promote the health, safety and welfare of the people of the Town of Dryden; 2. . . . this goal would be pursued. . . through. . . the following objectives: a. protect the unique natural assets of the town, b. make optimum use of existing and future investments in public services and infrastructure, c. encourage intermunicipal cooperation and communication in land use policies and the provision of public services; 3. Promote the long-term viability of the agricultural community in the town, and preserve agricultural land resources, without unduly infringing on property rights; 4. Adopt land use regulations which grant agriculture primacy as a land use in areas zoned for agriculture; 5. Channel residential development toward areas where public infrastructure. . . exist or are planned; 6. Minimize conflicts between established and future residential areas and established and future commercial or industrial areas; 7. Preserve the natural open space resources, environmentally sensitive areas and unique flora and fauna of the town; 8. Evaluate future expansions of public. . . infrastructure based on cost and the need to protect environmental resources; 9. Ensure a continuous and systematic program of monitoring, maintenance and upgrading of existing. . . facilities to maximize their efficiency and lifespan; 10. Ensure the provision of a comprehensive system of fire, police and emergency services and communications to protect life and property throughout the town and 11. Channel future growth and development toward areas of the town where fire, police and emergency services are available or easily accessible.28 Just because NYSEG or Lansing or Ithaca says that there is a need for natural gas, even if the Town of Dryden wishes to cooperate with them, the Board should not ignore its well-considered and effective Comprehensive Plan. The Board should consider the potential impact that spraying pesticides, allowed under the proposed easements, could have in agricultural zones.29 As further discussed below, it would not be clear whether local emergency responders have the ability to deal with natural gas pipeline emergencies. And, several of the enumerated factors bear upon preservation of the Town’s unique assets. The Town of Dryden has set rational and esteemable goals and restrictions for its development. These principles should be a part of any considerations regarding land use in Dryden. III. Factual Background Regarding the Lansing/Freeville Reinforcement Project Jennifer Negus, NYSEG Real Estate Representative, stated that the details of the Easements that have been entered into with residents of West Dryden Road have not been recorded, and that until they are recorded the details would be treated as confidential and not discussed by NYSEG.30 In his letter to the NYS Department of Public Service, Iberdrola USA Director-Regulatory, Mark O. Marini stated that: 1. The proposed pipeline will be part of the Lansing/Freeville Reinforcement Project; 2. The proposed pipeline would affect approximately seven miles along the South side of West Dryden Road, including approximately 100 different properties in the Town of Dryden; 3. The pipeline is designed to provide “incremental service” in the Town of Lansing; 4. The pipe to be installed will be 10 inches in diameter and 5. The pipeline will connect Dominion Transmission’s Freeville Gate Station to a regulator station on Warren Road.31 Please note, the engineering overview provided with Mr. Marini’s letter does not show that any portion of West Dryden Road that is proposed to be affected will be included in the distribution area.32 According to the statements of NYSEG Project Manager David Bovee at the Dryden Town Board meeting on January 15, 2015: 1. Although the pipeline will be constructed of 10 inch diameter pipe, the distribution main to which the pipeline will be connected at the Warren Road regulator station is 8 inches in diameter; 2. NYSEG proposes to operate the pipeline at 124 psi, which would represent 6-7% of specified minimum yield strength (“SMYS”) and classify the pipeline as a “distribution line;” 3. Once the maximum allowable operating pressure (“MAOP”) is set at 124 psi, it cannot be increased; 4. At 124 psi, the pipeline would deliver gas at the rate of approximately 700,000 cubic feet per hour (“cfh”); 5. NYSEG proposes to use approximately 328,000 cfh of the pipeline’s capacity to “bring the existing systems up to over 70% and be able to provide gas for future projects;” 6. If operated at 125 psi, the pipeline would then classify as a “transmission line;” 7. Generally NYSEG wants to stay below 30% of SMYS; 8. Installation of an 8 inch pipeline on West Dryden Road would not be sufficient for the additional capacity required for future growth; 9. 10 inch pipe is more readily available and cost effective that 8 inch pipe; 10. The rights for the pipeline can be sold to any third party; 11. The pipeline is required to increase the Ithaca Area distribution system from 50%-70% maximum allowable pressure; 12. NYSEG would be able to provide the residents of West Dryden Road with gas from the pipeline, although there would be an “additional charge” for residences more than 100 feet from the pipeline; 13. The connection fees and regulations on NYSEG’s website were referenced; 14. No Federal Energy Regulatory Commission (“FERC”) permit would be required for the scope of work contemplated for the Freeville gate station and 15. NYSEG states that the pipeline cannot be used to repower Cayuga Power Plant.33 In response, Tony Ingraffea, Professor of Civil and Environmental Engineering at Cornell University, pointed out: 1. It appears that this pipeline is being “overdesigned by a factor of 20;” 2. At 700,000 cubic feet per hour, assuming an average resident’s annual use is approximately 7 cubic feet per hour, the pipeline could supply 100,000 households and 3. There is a question why NYSEG would propose to operate the pipeline at such a low capacity, suggesting a high degree of inefficiency.34 Dominion, the owner of the pipeline to which NYSEG proposes to connect the Lansing/Freeville Reinforcement Project at the Freeville Gate Station, has a publicly stated Corporate Strategy that includes: 1. “Transporting natural gas from the Marcellus and Utica shale formations. . . to help producers transport their gas to market” and 2. Installing “new transmission pipes serving natural gas markets in the Northeast and mid- Atlantic regions.35 As discussed later in this memorandum, the natural gas pipeline would not be regulated by the Federal government, as the design has been proposed. Despite comments by NYSEG’s Bovee, however, Federal regulations include a means of increasing a pipeline’s MAOP. Effective October 1, 2015, the regulations of the Federal Department of Transportation will allow operators of “pipelines already in service” to increase the MAOP of a pipeline to the “alternative maximum allowable operating pressure” in all but “Class 4” locations.36 The procedure for increasing the pressure in the line requires the pipeline operator only to: 1. Perform a strength test on the pipeline, 2. Notify Federal and State agencies of the proposed increase in pressure at least 180 days before operation at the higher pressure and 3. Agree to comply with operation and maintenance requirements under the Federal regulations.37 Class 4 locations are ones “where buildings with four or more stories above ground are prevalent.” West Dryden Road would most likely classify as a Class 2 location. In a Class 2 location, operators will be able to increase the MAOP of a pipeline from approximately 60% up to 67% of SMYS.38 It would thus seem that, as of October 1, 2015, the Lansing/Freeville Reinforcement Project could potentially operate at more than 7,000,000 cfh. The amount of gas that could potentially be delivered to the affected residents of West Dryden Road would be approximately 0.10% of the pipeline’s capacity, according to NYSEG. In light of the Federal regulations cited above, the amount of gas delivered to West Dryden Road would likely be closer to 0.01% of the pipeline’s potential capacity. In his comments to the Board, Stephen Merwin points out that he was offered the sum of $1.00 for his consent to the easement offered by NYSEG.39 This $1.00 payment would compensate Merwin for the inconvenience to which he will be subjected for the installation, inspection, repair, replacement and removal of the pipeline, and for the burden of an “underground gas pipeline, including hand/man holes, pipes, ducts and conduits, with the necessary and appurtenances thereto and NYSEG’s “right now and from time to time to trim, cut, burn, treat and/or remove by manual mechanical and chemical means trees, roots, brush, structures and other obstructions within said easement and right of way.”40 The same $1.00 would compensate Mr. Merwin for the volume of gas that NYSEG plans to transfer across his property on a daily basis. In January 2015, the average residential price of natural gas in New York State was a rock-bottom $10.51/MCF.41 The value of gas passing Mr. Merwin’s property on an hourly basis at that rate would be at least $73.57 and as much as $735.70. On a daily basis the value would be at least $1,765.00 and as much as $17,656. And, on a yearly basis, the value of the gas at that rate would be at least $92,067.60 and as much as $920,676.00. However, in August 2008, the residential price of natural gas hit a high of $24.96. Thus, the value of the gas being transferred by the proposed natural gas pipeline could conceivably be as much as $15,305,472.00 per year or higher. Mr. Merwin would effectively be giving away rights to transfer a fortune across his property for next to nothing. And for the privilege of connecting to the pipeline, the affected residents of Dryden would have to pay NYSEG or its successors hundreds of times the amount they received for use of their property. IV. The Proposed Pipeline Would Not be Regulated Under Federal or State Law. Despite the fact that NYSEG is regulated by the PSC in some respects, it appears that the proposed gas pipeline would not fall under state or federal regulatory authority. 1. Lack of Federal Regulation. The Federal Department of Transportation regulations prescribe Minimum Federal Safety Standards relating to natural gas pipelines.42 However, the regulations do not apply to “a pipeline that is not a regulated onshore gathering line.”43 Federal regulations would not apply where the proposed pipeline would operate: 1. Beyond the furthest downstream point in a production operation; 2. Beyond the first downstream natural gas processing plant; 3. After the comingling of gas from separate production fields and 4. Beyond the furthest downstream compressor used to increase gathering line pressure for delivery to another pipeline.44 New York state banned hydraulic fracturing for gas on December 17, 2014, so the proposed pipeline cannot lie before a natural gas processing plant or within a production operation. When looking at a diagram of the Atlantic Coast Pipeline, it is apparent also that the nearest storage facilities are located on the NY/PA border.45 Thus, all of the gas that reaches the proposed pipeline would likely be comingled from separate production fields. And, if for no other reason, the fact that Dominion plans to decrease the pressure of the of the gas from 1440 pounds to 60 pounds at the Freeville gate station alone seems to establish that the Federal regulations do not apply here. 2. Lack of State Regulation In order for a pipeline to be regulated pursuant to the NYS Public Service Law (“PSL”), it would have to classify as a “major transmission facility.”46 The proposed natural gas pipeline would not likely classify as a “major transmission facility” because: 1. NYSEG proposes to operate the pipeline at a pressure of 124 PSI or less and 2. The proposed pipeline will be located entirely underground, wholly within the right of way of a state, county or town highway.47 The County Right-of Way extends twenty five feet from the centerline of West Dryden Road. The South lane of West Dryden Road is approximately 12 feet wide. NYSEG’s Negus stated that the easement will run approximately 7.5 feet in either direction from the edge of the road. Thus, the easement will fall entirely within the right of way. Accordingly, by virtue of the fact of its proposed pressurization and location, the construction of the pipeline would not appear to fall under PSC regulation. However, were NYSEG to propose construction of 10 inch pipeline outside the right-of-way and to be operated at 125 PSI or higher, under the NYS Public Service Law the PSC would require filing of an application, including specifically: 1. Description of the ecosystem, land use, visual and cultural resources which would be affected by the line; 2. An indication of the approved environmental management and construction standards and practices that will be followed in an effort to minimize or avoid adverse environmental impacts to the maximum extent practicable and 3. Notice to the NYS Department of Environmental Conservation, NYS Department of Agriculture and Markets and each municipality in which any portion of such line is to be located.48 Furthermore, were the project to fall under PSL § 121-a, the applicant would be required to serve notice “on each municipality in which any portion of such line is to be located,”49 “any person may file comments on an application with the commission”50 and the commission may extend the time required to render a decision where it conducts a public hearing.51 Thus, some public participation is guaranteed in the PSC review process. Also, when a pipeline is regulated as a major transmission facility under the PSL, “notwithstanding any other provision of law, no. . . municipality or any agency thereof may require any approval, consent, permit, certificate or other condition for the construction or operation of a major facility with respect to which an application for a certificate” has been issued by the PSC.52 Thus, it appears that under the PSL, permitting by the PSC would properly and completely supersede the Town of Dryden’s ability to regulate the any aspect of the proposed pipeline’s construction and operation; perhaps with the exception of completely prohibiting construction of similar types of pipelines. The PSC issues a decision on a major transmission facility within 60-days from receipt of the application. The decision will state whether review has determined the project to be in the public interest. However, in the decision the PSC may only make the following determinations: (a) the basis of the need for the facility; (b) the nature of the probable environmental impact; (e) in the case of a gas transmission line, that the location of the line will not pose an undue hazard to persons or property along the area traversed by the line; (f) that the location of the facility as proposed conforms to applicable state and local laws and regulations issued thereunder, all of which shall be binding upon the commission, except that the commission may refuse to apply any local ordinance, law, resolution or other action or any regulation issued thereunder or any local standard or requirement which would be otherwise applicable if it finds that as applied to the proposed facility such is unreasonably restrictive in view of the existing technology, or of factors of cost or economics, or of the needs of consumers whether located inside or outside of such municipality. (g) that the facility will serve the public interest, convenience, and necessity, provided, however, that a determination of necessity made by the power authority of the state of New York pursuant to section ten hundred five of the public authorities law for a major utility transmission facility for which an application has been filed prior to July first, nineteen hundred seventy-eight pursuant to section one hundred twenty-two of this chapter, shall be conclusive on the commission.53 To be regulated by the PSC would be a trade-off for NYSEG. On one hand, the PSC could arguably supersede the land use authority of the Town of Dryden, the definition of “public necessity” need not relate directly to the residents of the Town and claims of the project’s unreasonablility could be overcome by NYSEG’s arguments regarding cost or other economic factors. However, to gain these advantages, NYSEG would have to disclose the details of their project, allow public comment and subject themselves to an inquiry regarding the safety and environmental impact of the pipeline. 3. Considerations by the Town Board Relevant to the Lack of Federal/State Regulation In the event that the pipeline does not fall under superseding sections of the PSL54 or any relevant Federal or state laws, home rule would dictate that the Town Board shall have discretion regarding the permitting and siting of the proposed natural gas pipeline. The Town Board should carefully consider why NYSEG would choose secrecy and to use only a fraction of the pipeline’s potential capacity, over presumptions that seem so strongly in their favor in the PSC permitting process. Use of the terms “distribution line” and “gas main” by NYSEG suggests the gas that will be transported in the pipeline will be used as a “public utility” for the “benefit of the residents or businesses of the town,” much as was required under the Franchise Agreement, as explained below. The details that have been provided by NYSEG and Iberdrola make clear that the benefit from the proposed project to residents in the Town of Dryden will be marginal at best, in comparison to those of NYSEG. It would appear that the need for pipeline regulation is very real. Assistant Supervisor Jason Leifer astutely observed at the January 15, 2015 Town Board meeting: “We have tighter controls over cell towers which don’t hurt anybody, than these gas mains which can level a neighborhood, as they have elsewhere.55 In fact, in January 2015 five “explosions” of natural gas and petroleum pipelines were reported in the United States.56 The natural gas pipeline that exploded in a rural portion of West Virginia on January 26, 2015 reportedly spewed flames into the air for approximately 24 hours before the local authorities could get the blaze under control.57 V. THE EXISTING FRANCHISE AGREEMENT BETWEEN THE TOWN OF DRYDEN AND NYSEG 1. Factual Background Regarding the Franchise Agreement NYSEG and the Town Board of Dryden entered into the Franchise Agreement effective August 20, 1951. The purpose of the Franchise Agreement was to allow NYSEG to “lay, place and maintain conduits, pipes, mains, services and other appliances through, along and under the public highways, lanes, streets and other public places in said Town for the purpose of conducting gas for the supply of public and private buildings in said Town.”58 Provisions of the agreement make clear that the gas supplied would be for use by people in the town, that the Town would maintain control over siting of the infrastructure and that NYSEG would be subject to all Town laws, ordinances and permitting processes when installing or repairing the infrastructure. In discussions before the Board, several individuals have questioned the Franchise Agreement’s applicability in this matter. Accordingly, this memorandum discusses in brief important protections from the Franchise Agreement that the Town should maintain in any Zoning Law amendments, future contracts, permit review processes or actions relating to the proposed public utility development. 2. Gas Conducted Under the Agreement Must Only Benefit Town Residents and Businesses The Franchise Agreement allows only for the development of gas infrastructure “for the purpose of conducting gas for the supply of public and private buildings and places in said Town.” (Emphasis added.)59 This clear intent is echoed when the Franchise Agreement states that the infrastructure contemplated under the agreement is meant “to distribute such gas for lighting, heat or power in the public and private buildings and places within the said Town.” (Emphasis added.)60 These two paragraphs make clear that the parties intended the Franchise Agreement to allow only development of gas distribution infrastructure for the purpose of delivering gas within the Town. At no point does the Franchise Agreement discuss the possibility of gas development for the purpose of transferring, transmitting or otherwise conducting gas through the town for the benefit of individuals outside of the Town. 3. The Franchise Agreement Contains Provisions that Protect the Rights of the Town Board, Residents and Businesses in the Town of Dryden a. Siting of Infrastructure Must be Determined by the Town Board The Franchise Agreement stated specifically that the gas infrastructure would be “located under the direction of said Town Board or its duly authorized agent.”61 This reflects the municipal authority to regulate land use discussed at length in the New York State Court of Appeal’s decision regarding the Town of Dryden’s zoning ordinance amendments that prohibited all oil and gas exploration, extraction and storage activities.62 The Court emphasized that “the local regulation of land use is ‘[a]mong the most significant powers and duties granted. . . to a town government.’”63 Thus, in the agreement NYSEG acknowledges the Board’s sole discretion to site public utility infrastructure within the Town’s limits. b. Indemnification of the Town by NYSEG In the Franchise Agreement, NYSEG explicitly and “shall at all times indemnify and save harmless said Town and the members of the Town Board,”64 from any liability “by reason of the location and maintenance”65 of the gas infrastructure placed pursuant to the agreement or “by reason of any action done or omitted to be done in the premises by said Company.”66 As the Town dictates only where the gas distribution infrastructure may be located under the agreement, it is only right that NYSEG should bear all liability for any faulty installation, operation and maintenance of the infrastructure. c. NYSEG Must Secure Permits The Franchise Agreement states that “whenever” NYSEG “shall have occasion to make an opening in the surface of any street or other public place for the purpose of laying or repairing” (Emphasis added.)67 the gas distribution infrastructure, “it will first procure any permits necessary under the law or ordinances of said Town.”68 The definition of “public place” as it relates to the proposed gas transmission pipeline is addressed in later sections of this memorandum. The agreement also states that the permission to construct the gas infrastructure in the Town “is made upon condition that permission be secured from such public officers and commissions as is required by law.”69 The types of permits that NYSEG must obtain were not limited to those that may have been required at the time the parties entered into the Franchise Agreement. At the time the parties entered into the Franchise Agreement, NYSEG could have reasonably foreseen, and thus accepted, that the Town may have exercised the authority to expand upon or amend their laws and ordinances. d. Preservation of Character and Desirable Aesthetic Features of the Community The Franchise Agreement states that NYSEG “will restore the surface of such street or other public place as nearly as possible to its former condition.” This duty is consistent with another right of municipalities that the Court of Appeals considered to be “without question:” the ability to “enact land-use restrictions or controls to enhance the quality of life by preserving the character and desirable aesthetic features of [the community].”70 Under the agreement, it was contemplated that the gas distribution infrastructure would be installed in such a manner that it did not negatively impact the character and desirable aesthetic features of the Town. The Board would be well-advised to include all of the protections provided by the Franchise Agreement in any future Zoning Law amendments it enacts or contracts it enters into regarding public utilities. VI. Conclusions. All of the foregoing suggests two primary conclusions: 1. In the event that the Board attempts to effect any amendments to the Zoning Law that will remove the Special Use Permit requirement with regard to public utility development, it would be well advised to ensure that the amendments make clear that allowed public utility development must only be for the benefit of Town residences and businesses, that the amendments reflect the realities of public utility regulation, a full SEQR review is conducted and the amendments’ consistency with the Town’s Comprehensive Plan is considered. 2. In the event that the Board determines the proposed pipeline to be an allowable use, the Board would be well advised to conduct a searching and thorough Special Use Permit review and impose conditions that will ensure the safety of residents, and preserve the character, desirable aesthetic features and unique natural assets of the Town. Dated: April 16, 2015 Respectfully submitted, ____________________________ Vinton Bovier Stevens, Esq. Counsel for Concerned Residents of Dryden Law Office of Vinton Bovier Stevens P.O. Box 882 Ithaca, NY 14851-0882 Tel: 607-857-8783 Fax: 607-697-0499 cc: Concerned Residents of Dryden 1 Letter from Mark O. Marini of Iberdrola USA to Hon. Kathleen H. Burgess, Secretary, NYS Department of Public Service, February 9, 2015 (“Marini Letter,” attached with engineering overview, for the Board’s convenience). 2 Franchise Agreement between NYSEG and the Dryden Town Board (“Franchise Agreement”), Tompkins County Clerk, Miscellaneous, Liber 11, Page 72, Entered August 28, 1951. 3 See., Dryden Town Board Meeting Minutes, March 19, 2015 (“3/19/2015 Minutes”), http://dryden.ny.us/wp-content/uploads/2015/04/TB-3-19-15.pdf, p. 8. 4 Id., p. 8-14. 5 Id., p. 14. 6 Town of Dryden, Zoning Law § 501. 7 Id., § 500(b). 8 See Id., § 401 (Zoning Map) and the Town of Dryden Zoning Map, http://dryden.ny.us/zoningresourcespage. 9 Id., § 500. 10 Id., §501. 11 Id., Article III: Definitions. 12 See Sample Easement to Linda Parks (“Parks Easement”)(Attached for the Board’s convenience.) 13 Zoning Law § 1202(E). 14 Id., § 1203(E). 15 See., Dryden Town Board Meeting Minutes, January 15, 2015, (“1/15/15 Minutes”), p. 4. 16 See, Parks Easement. 17 See., 1/15/15 Minutes, p. 4-7. 18 Id. 19 See, Zoning Law § 1701 and Town Law § 265(2). 20 See, Municipal Home Rule Law § 20(4). 21 See, Gewirtz v. City of Long Beach, 1972, 69 Misc.2d 763, 777. 22 Anschutz Exploration Corp. v. Town of Dryden, 35 Misc.3d 450, 470 (Tompkins County Supreme Court, 2/21/2012). 23 6 NYCRR 617.4(b). 24 Id., 617.3(a). 25 Id., 617(a)(1). 26 Id. 617.7(iv)-(viii). 27 Id., 617.9(a)(3) and (4). 28 See, Dryden Comprehensive Plan, http://dryden.ny.us/Downloads/CompPlanFull.pdf. 29 See Parks Easement. 30 See 1/15/15 Minutes, p. 4. 31 See Marini Letter. 32 See Id., engineering overviews. 33 1/15/15 Minutes, pp. 3-9. 34 Id., p. 7. 35 See Dominion Corporate Strategy 2013-2014 (Dominion Corporate Strategy), http://www.dominioncsr.com/business/corporate_strategy.php and Atlantic Coast Pipeline Overview (“Copy attached for the Board’s convenience.”) 36 See 49 CFR § 192.620(c)(1). 37 See Id., 192.620(1), (4) and (7). 38 See “Standards for Increasing the Maximum Allowable Operating Pressure (MAOP) for Gas Transmission Pipelines, 73 FR 13167 (March 12, 2008) (Copy attached for the Board’s convenience.). 39 1/15/15 Minutes, p. 1. 40 See Parks Easement. 41 See Natural Gas Prices, http://www.eia.gov/dnav/ng/ng_pri_sum_dcu_sny_m.htm (Attached, for the Board’s convenience.) 42 See 49 CFR 192.1. 43 Id., 192.1(b)(4)(ii). 44 Id., 192.8(a)(1)-(4). 45 See Dominion Atlantic Coast Pipeline Overview. 46 NY Pub Serv § 120(2). 47 Id. 48 Id., 121-a(3). 49 Id., 121-a(2). 50 Id., 121-a(5). 51 Id., 121-a(7). 52 Id., 130. 53 Id., 126(1)(a)-(b) and (e)-(g). 54 Id., 126(1)(f) and (g). 55 1/15/15 Minutes, p. 12. 56 See: http://www.msnbc.com/rachel-maddow-show/watch/another-day-another-pipeline- explosion-389955139564. 57 See: http://thinkprogress.org/climate/2015/01/27/3615805/west-virginia-gas-pipeline- explosion/, http://www.wtrf.com/story/27940731/authorities-responding-to-gas-line-explosion (Attached for the Board’s convenience.) 58 1/15/15 Minutes, p. 1, lines 4-7. 59 Id., lines 6-7. 60 Id., lines 20-21. 61 Id., lines 7-8. 62 See, Wallach v. Town of Dryden, 23 N.Y.3d 728, 742 (2014). 63 Id., (quoting New York State Town Law (“Town Law”) § 272-a[1][b].). 64 Franchise Agreement, p. 2., line 12. 65 Id., lines 14-15. 66 Id., lines 17-18. 67 Id., line 20. 68 Id., lines 22-23. 69 Id., p. 3., lines 1-3. 70 Wallach, 742 (quoting Trustees of Union Coll. In Town of Schenectady in State of N.Y. v. Members of Schenectady City Council, 91 NY2d 161, 165 [1997].).