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HomeMy WebLinkAbout1995-10-04290 October 04, 1995 The Lansing Town Board met in Special Session at Town Hall Board Room at 7:00 P.M. with Supervisor Kirby Jeannine Kirby Herbert Beckwith Paul Butler Jeffrey Cleveland Larry Tvaroha Bonita Boles Debbie Crandall Richard John ROLL CALL Supervisor Councilman Councilman Councilman Councilman Town Clerk Deputy Town Clerk Town Attorney the Lansing presiding. Present Present Absent Present Present Absent Present Present VISITORS: Pete & Jackie Larson, Ralph & Eleanor Barnard, Christopher Michaels, Ruth Adams, James Henry, George Totman, Mr. & Mrs. Robert Whipple, Cindy Seager, Bud Shattuck and one other Lansing Resident. The Supervisor called the meeting to order and had the clerk take the Roll Call. Proof of Notice having been furnished, the Public Hearing to discuss a Qualified Abandonment of a portion of Algerine Road was called to order at 7:00 P.M. Rich John, Town Attorney stated that this was a Public Hearing to discuss a qualified abandonment of a spur of Algerine Road from the intersection of Lansing Station Road West part way to the lake. A qualified abandonment would be that the Town would no longer be maintaining the road. Although it would still be open for Public use. The purpose of the Public Hearing is to hear comments on this matter. Christopher Michaels, Attorney on behalf of Mr. & Mrs. Barnard passed out the following information and reviewed it with the Board. FACTUAL SUMMARY 1. Ralph R. Barnard & Eleanor A. Barnard own a lake front residence at 293 Algerine Road, Lansing, New York, Town of Lansing, Tompkins County tax parcel no. (13.- 2 -1.1). 2. The lake front residence was purchased from Walter Daniel Fitzpatrick, Jr., on August 27, 1965, by warranty deed recorded in the Tompkins County Court House, Liber 458 page 630. and Walter Daniel Fitzpatrick, Jr., purchased the same property from J. Karl Dates et al on June 18, 1964, deed recorded in the Tompkins County Clerks Office on July 14, 1964, Liber 451 page 364. 3. The lake front property was rented in September of 1965 as a year around residence and has been rented continuously, except for periods required for the change of tenants and repairs until the present time. 4. The residence property fronts on and depends on that part of Algerine Road in the Town of Lansing (which is the subject of a special meeting of the Town of Lansing, Town Board set for 7 p.m., October 4, 1995, to consider qualified abandonment of the same pursuant the New York Highway Law, Section 205(2)) for unqualified public road access. 5. The part of Algerine Road being considered for qualified abandonment is the only vehicle access into the driveway for the subject year residence home being rented out because of a large ravine to the south of the house. 6. In order for New York Highway Law, Section 205(2) to be applicable in support of a qualified abandonment of a public highway, it must appear to the Town Highway Superintendent and Town Board that the portion of the highway to be abandoned has not for the proceeding two years been usually traveled along the greater C 291 October 04, 1995, continued part thereof by more than pedestrians and persons on abandonment will not cause occupant of lands adjoining two vehicles daily, in horse back, and that such injustice or hardship to the highway. addition to a qualified an owner or 7. Darnel W. Harp, Assistant Commissioner of Transportation for the State of New York for legal affairs, told Ralph R. Barnard by telephone that he believed that the injustice and hardship provisions of section 205(2) prevents the section from being successfully applied to any public highway which adjoins the property containing a operating full -time residence. Darnel Harp, in his role of lawyer for the State Department of Transportation is experienced in the appeals for this section of the law prior to the law change in 1988, which took the State Department of Transportation out of the loop, for the function. Darnel Harp's memorandum relating to the application of section 205(2) is attached to the summary. 80 Over the last two years, the Barnards, the Barnards' employees, the Barnards' tenants and the tenants' housemates and invitees have usually traveled over the public road from and to the driveway more than two times a day. 98 Our neighbor, Ruth Adams and her family, often use the public road to drive to her water front area where she has a basement storage building which she stores at least some of her lawn care equipment, including one or more riding lawn mowers. Also, Ruth 'Adams, for the last two years at least, has mowed the area of the subject public road, back and forth over its length. (under the statute, all traffic is considered including vehicle, pedestrian and equipment (i.e. a lawn tractor) traffic.) 100 The above facts support the proposition that for the proceeding two years the portion of the public highway has been usually traveled, the greater part thereof, by more than two vehicles daily and therefore, the stated jurisdictional threshold has been met and qualified abandonment pursuant to Section 205 (2) is not authorized. 11. Because of our subject rental residence adjoins the subject public road and the public road is the only access into the subject rental residence, a qualified abandonment under section 205 (2) of the Highway Law, would cause injustice or hardship for each of the following reasons: a) The subject rental residence would be land locked because of the lack of'access to a public road, preventing any proposed application of the law for qualified abandonment. b) Vehicle access to the lake front residence is totally dependent upon being able to cross that culvert. The culvert under Algerine Road, as a creek, passes thereunder down hill from where the new Lansing Station Road cuts in, is potentially defective and repair of the same would be very expensive given the fact Karl Dates added one or more lengths down hill some years ago and Ruth Adams added at least one length up hill within the last six months. The cost of repair would be prohibitive for the Barnards to accomplish if a qualified abandonment under Section 205(2) is allowed to proceed. This is a hardship, which would preclude the applicability of Section 205(2) to the subject portion of Algerine Road. c) The lack of public maintenance and public snow removal and such would be a hardship and an injustice, preventing any proposed application of the law for qualified abandonment. d) The section of the law purports to authorize someone such as Ruth Adams or her Successors or Assigns to install up to two fences and two ten foot latched gates across the subject public road. Such a possibility creates an 292 October 04, 1995, continued overwhelming hardship on the occupant of the subject residence, if section 205(2) were allowed to create qualified abandonment. e) The section of the law purports to authorize persons such as Ruth Adams or her Successors or Assigns, to request that proper authorities charge any member of the public or the tenant or owner of the subject residence with a misdemeanor by the presumptions contained therein should a gate be unlatched at any time. Such a possibility creates an overwhelming hardship on the occupant of the subject residence and would unreasonably restrict passage over a 190 foot public right -of -way for all concerned. 12. This factual summary illustrates that the subject public road is usually traveled over by more than two persons on a daily basis, and that a qualified abandonment would cause injustice or hardship to residents. Attached to the factual summary sheet was a map illustrating the area. The following McKinney's Highway Law Sec. 205 was referred to and passed out. MCKINNEY'S CONSOLIDATED LAWS OF NEW YORK ANNOTATED HIGHWAY LAW CHAPTER 25 OF THE CONSOLIDATED LAWS ARTICLE VIII - TOWN HIGHWAYS Current through L.1995, chs.1, 6 to 49, and 55 to 62 Sec. 205. Highways abandoned 1. Every highway that shall not have been opened and worked within six years from the time it shall have been dedicated to the use of the public, or laid out, shall cease to be a highway; but the period during which any action or proceeding shall have been, or shall be pending in regard to any such highway, shall form no part of such six years; and every highway that shall not have been traveled or used as a highway for six years, shall cease to be a highway, and every public right -of -way that shall not have been used for said period shall be deemed abandoned as a right -of -way. The town superintendent with the written consent of a majority of the town board shall file, and cause to be recorded in the town clerk's office of the town a written description, signed by him, and by said town board of each highway and public right -of -way so abandoned, and the same shall thereupon be discontinued. 2. There may also the following condi Where it appears to any time, that a aforesaid, but that it has not for be a qualified abandonment of a highway under tions and for the following purposes, to wit. the town superintendent and said town board, at highway has not become wholly disused as two years next previous thereto, been usually traveled along than two vehicles daily, persons on horseback, the greater part thereof, by more in addition to pedestrians and and it shall also appear to the superintendent of highways of the county in which such town is situate that a qualified abandonment of such highway is proper and will not cause injustice or hardship to the owner or occupant of any lands adjoining such highway after such superintendent shall have held a public hearing thereon upon giving at least twenty days' written notice to such owners and occupants of such lands of the time and place of such hearing, they shall file and cause to be recorded in the town clerk's office a 293 October 04, 1995, continued certificate containing a description of that portion of the highway partly disused as aforesaid and declaring a qualified abandonment thereof. The effect of such qualified abandonment, with respect to the portion of said highway described in the certificate, shall be as follows: It shall no longer be worked at the public expense, it shall not cease to be a highway for purposes of the public a highway made pursuant easement, by reason of such suspension of work thereon; f i l i ng by the no persons shall impair its use as a highway nor obstruct, it, except as hereinafter provided, but no persons shall be required to keep any part of it in repair; wherever and owner or lessee of adjoining lands has the right to possession of other land wholly or partly on the directly opposite side of the highway therefrom, he may construct and maintain across said highway a fence at each end of the area of highway which adjoins both of said opposite pieces of land, provided that each said cross fence must have a gate in the middle thereof at least ten feet in length, which gate must at all times be kept unlocked and supplied with a sufficient hasp or latch for keeping the same closed; all persons owning or using opposite lands, connected by such gates and fences, may use the portion of highway thus enclosed for pasturage; any traveler or other person who intentionally, or by wilful neglect, leaves such gate unlatched, shall be guilty of a misdemeanor, and the fact of leaving it unlatched shall be prima facie evidence of such intent or wilful neglect. Expecting as herein abrogated, all other general laws relating to highways shall apply to such partially abandoned highway. This section shall not apply to highways less than two rods in width unless it shall appear to the town superintendent at any time that such a highway has not, during the months of June to September inclusive of the two years next previous thereto, been usually traveled along the greater part thereof by more than ten pedestrians daily. Any action or proceeding involving the abandonment or qualified abandonment of a highway made pursuant to this section must, in the case of abandonment, be commenced within one year from the date of f i l i ng by the town super i ntendent as prov i ded i n subd i v i s i on one of this section. Town has any facts that contradict this (emphasis and line breaks added) publicly Mr. Tvaroha stated that in the summary it was mentioned that the Barnards' employees travel over the driveway. He asked if there was a business at the residence. Attorney Michaels stated that this referred to the employees that they hired to maintain the property. Attorney, James Henry representing Ruth Adams, who is the adjacent landowner stated that there are only two properties that front on the spur, the Barnard property and the Adams property. The statute Section 205 has a two prong test, the amount of use and the amount of hardship. The hardship would be done by the County Superintendent with a hearing. If the Town Board chooses to do a qualified abandonment, looks to the question, would it be advantageous to the Town.) Does the Town want to continue to maintain it? The Town has to look at over a two year period and if there has usually been more than two vehicles traveling over the After summarizing the above Attorney Michaels stated that Section 205 of the Highway Law can not be applied. Having provided this to the Board members, Attorney Michaels requested that if the Town has any facts that contradict this that they make them publicly available so they can be discussed. Mr. Tvaroha stated that in the summary it was mentioned that the Barnards' employees travel over the driveway. He asked if there was a business at the residence. Attorney Michaels stated that this referred to the employees that they hired to maintain the property. Attorney, James Henry representing Ruth Adams, who is the adjacent landowner stated that there are only two properties that front on the spur, the Barnard property and the Adams property. The statute Section 205 has a two prong test, the amount of use and the amount of hardship. The hardship would be done by the County Superintendent with a hearing. If the Town Board chooses to do a qualified abandonment, looks to the question, would it be advantageous to the Town.) Does the Town want to continue to maintain it? The Town has to look at over a two year period and if there has usually been more than two vehicles traveling over the Nd October 04, 1995, continued road. The definition of vehicles pertains to motor vehicles. The question is not what has been happening this past month or two weeks, but Mrs. Adams but a qualified There are over would abandonment two a two year period. prefer the highway be abandoned completely, would be acceptable. properties that the Barnard's own and a third owned from by their son. the other side. There are possibilities for having access out Mr. Michaels stated that this is not an option because of the large culvert. This would be an economical hardship for the Barnard's. Mr. Barnard recommended that Attorney Rich John, Chris Michaels and John Henry contact Mr. Hart, assistant commissioner for the Transportation Department at Cornell University concerning section 205(2) and 205(A). Mr. Barnard requested from the Town Board what usage information they have. Attorney, Rich John stated that this hearing is an opportunity to state your Barnard would views. have If this matter an opportunity to is referred to the get that information. County Mr. Mr. Larson stated that this was a section of road that doesn't benefit the Town. The last maintenance was done in 1990 when dust oil was put down. It has never been plowed or had a request to plow the road. The Town Board gave all residents an opportunity to state their views. RESOLUTION, offered by Mr. Beckwith who moved its adoption, seconded by Mr. Cleveland: RESOLVED, after all persons desiring to be heard, having been heard, the Public Hearing for the qualified abandonment of Algerine Road was closed. Vote of Town Board (Aye) Herbert Beckwith, Councilman Vote of Town Board (Aye) Jeffrey Cleveland, Councilman Vote of Town Board (Aye) Larry Tvaroha, Councilman Vote of Town Board (Aye) Jeannine Kirby, Supervisor Monica Roth, from the Ag & Farmland Protection Board gave the Town Board an update on the Agriculture District Review, Ms. Roth provided the Board members with a Tompkins County Agriculture Industry Survey for the Town of Lansing. Ms. Roth passed out a time frame for the District Review, Ms. Roth referred to two maps that she provided for the Town. She urged the Board to provide input and recommend what areas should be removed from the Ag District. Primarily these would be lands that might be moving towards development. Mrs. Kirby stated she felt this should be a landowners right and not any government. Ms. Roth stated it is ultimately the landowners decision. Mr. Tvaroha asked if the Protection Board could deny a request to get out of the Ag District. Ms. Roth stated they could deny a request although it has not been the policy. Mr. Tvaroha stated that this is a very big invasion of a person's rights to their own property. Mr. Tvaroha asked if the landowner is compensated if their request is denied? Ms. Roth stated that they would recommend to the County Board and it would be the County's decision if the request was denied. Ms. Roth passed out a time frame for the District Review. The deadline is April 28, 1996 for completion of the Ag Review, The County will hold a Public Hearing December 05, 1995. The Town's were sent a letter. A letter will be sent to every property owner in the District. The Ag & Protection Board will be meeting with Towns to try to gather all the information possible before the 29 October 04, 1995, continued Public Hearing, Ms. Roth provided the clerk with two pamphlets, one entitled The Agricultural Districts Law and the other entitled Know the Facts! New York's Agricultural Districts Law. The two requests that the Board now has in writing is the Lane property and the Watchtower property. The Town Board suggested that Ms. Roth meet with the Lansing Town Planning Board. Also to have Ms. Roth put an article in the Town newsletter concerning this law. The Board thanked Ms. Roth • for meeting with them. Mr. & Mrs. Robert Whipple approached the Board with their request for water. Dave Herrick, Town Engineer provided a preliminary construction cost estimate and method of financing in regards to the Water District No. 7 proposed Extension No. 11 - East Shore Circle. Mr. Herrick stated that a large expense to this proposed district was the State Highway crossing by boring in the amount of $14,500. After further discussing the project, Dave Herrick will check with the engineer in charge of the bridge replacement project and approach the State on cutting the road and putting a sleeve in instead of boring under the road. Dave Herrick will have Sharon Bowman send a letter to all the residents on East Shore Circle and Teeter Road as far as the Lynch property to see if there is other interest on the road. Then a Public Informational meeting will be held. Dave Herrick and Rich John will make appointments to meet with the landowners in Water District #17 to obtain the needed easements. Bids were due back on October 17, 1995. There were 25 contractors at the pre bid conference. The contractors were concerned with the time frame and completion date of January 31, 1995. George Totman passed out a County Bridge System Overview from the Tompkins County Highway Division, Dave Herrick reported on the HUD District. There are delays in getting easements and the bridge work. Mr. Herrick hoped to get the bid out before the end of the year. Mrs. Kirby passed out a letter she Helen Cogan. It was stated in the let responsible for running the service lines the west side to the East side. Then responsible for all costs to their buildi Mr. Herrick stated that it was never pay for the boring under the road and this Mr. Herrick will provide all the material at the Public Hearing, Mr. John and Mr. P • issue when they meet with the Cogan's to received form Howard & ter that NYSEG would be under NYS Route 34B from the homeowner would be ng. the intent to have NYSEG was a misinterpretation, that was made available ferrick will clarify this obtain their easement. Mr. Herrick discussed the bridge situation in Myers. Mr. Herrick spoke with Mr. Lapman concerning one lane versus a two lane bridge. A two lane bridge would cost 1/3 more. Mrs. Kirby stated it was imperative to have a two lane bridge as the main bridge on Ridge Road will be closed for a year. Mrs. Kirby will get the bridge closing in writing from the State. Also a prioritized replacement list of bridges from the County Board, Mr. Herrick passed out a draft letter to James Hanson, Jr., Tompkins County Planning Department requesting tax map data files for the Town of Lansing. Mrs. Kirby will sign the letter and send it to Mr. Hanson, Mr. Herrick passed out the 1996 preliminary Engineering /Survey budget. Mr. Bud Shattuck of 937 Ridge Road introduced himself to the October 04, 1995, continued Board and asked Mr. Herrick if his paved driveway would be replaced when the Water District Main #17 went through. Mr. Herrick stated that it would be a temporary situation and somewhat of an inconvenience but a permanent replacement would be done the earlier part of the summer. Mr. Shattuck stated he was a twenty year resident of Tompkins County and a new homeowner in the Town. He enjoyed coming to meetings and will be at future ones. If there was a committee he could serve on he would be available. Mr. John informed the Board that the ribbon cutting for The Rink will be 4:30 P.M. tomorrow, October 05, 1995, Mrs. Kirby said that she received a phone call inviting everyone who works for the Town. Mrs. Kirby will meet with Cheryl Nickel, Monday morning October 9th concerning the relocation of the new proposed Town Hall, Mrs. Kirby will meet on Wednesday, October 11th with the advisor to the Farm Board concerning the Ag District. contract to go into affect is December 01, 1995. Mr. John gave an update on the NYMER and Perma Safety Policy. He recommended to the Town Board that they be the Executive Safety Committee and have Pete Larson and Steve Colt be Co- Safety Coordinators. Mr. Tvaroha asked Mrs, Kirby t o have Sharon Bowman provide him with the difference in cost from Dryden's carrier for NYMER and Perma and the Towns. Mr. Tvaroha will pursue this issue to see if the Town can recover the difference in cost. Mrs. Kirby discussed the Pyramid Mall assessment settlement, $73,000 pay back - $14,000 per year for 5 years. Mrs. Kirby stated that this needs to be figured in to the Budget. Mr. John gave the information to Andy LaVigne. Mr. LaVigne stated that the tax rate that was applied was a wrong rate. The Fire rate was added to the Town rate. This could be a substantial difference and he will get back to the Board. A copy of the minutes of August 16th, 30th, and September 06, 1995 having been given to the Board Members beforehand, the Supervisor asked for a motion to make corrections or to accept the same as submitted. RESOLUTION, offered by Mr. Cleveland who moved its adoption, seconded by Mr. Beckwith: RESOLVED, that the minutes of August 16th, 30th and September 06, 1995 are hereby approved as submitted. Carried. Carried, Carried. It was the consensus of the Town Board to send all the HUD District Residents a letter giving them an update on their Water District. RESOLUTION, offered by Mr. Cleveland who moved its adoption, seconded by Mr. Tvaroha: RESOLVED, that the Special Meeting be adjourned to go into �1 Mr. Cleveland reported that he had not heard from Bangs concerning the Ambulance situation. Attorney John stated he had made some revisions in the draft agreement. He gave a copy to Herb Beckwith and Jeff Cleveland to review and get back to the Board. Mr. Cleveland will give a copy to Bangs for them to review. Mrs. Kirby will also contact Bangs. The target date for the contract to go into affect is December 01, 1995. Mr. John gave an update on the NYMER and Perma Safety Policy. He recommended to the Town Board that they be the Executive Safety Committee and have Pete Larson and Steve Colt be Co- Safety Coordinators. Mr. Tvaroha asked Mrs, Kirby t o have Sharon Bowman provide him with the difference in cost from Dryden's carrier for NYMER and Perma and the Towns. Mr. Tvaroha will pursue this issue to see if the Town can recover the difference in cost. Mrs. Kirby discussed the Pyramid Mall assessment settlement, $73,000 pay back - $14,000 per year for 5 years. Mrs. Kirby stated that this needs to be figured in to the Budget. Mr. John gave the information to Andy LaVigne. Mr. LaVigne stated that the tax rate that was applied was a wrong rate. The Fire rate was added to the Town rate. This could be a substantial difference and he will get back to the Board. A copy of the minutes of August 16th, 30th, and September 06, 1995 having been given to the Board Members beforehand, the Supervisor asked for a motion to make corrections or to accept the same as submitted. RESOLUTION, offered by Mr. Cleveland who moved its adoption, seconded by Mr. Beckwith: RESOLVED, that the minutes of August 16th, 30th and September 06, 1995 are hereby approved as submitted. Carried. Carried, Carried. It was the consensus of the Town Board to send all the HUD District Residents a letter giving them an update on their Water District. RESOLUTION, offered by Mr. Cleveland who moved its adoption, seconded by Mr. Tvaroha: RESOLVED, that the Special Meeting be adjourned to go into �1 0 • October 04, 1995, continued Executive Session at 10:15 P.M. to discuss the qualified abandonment of Algerine Road. RESOLUTION, offered by Mr. Cleveland who moved its adoption, seconded by Mr. Beckwith: RESOLVED, that the Executive Session be terminated at 10:30 P.M. and the Special Meeting be reconvened. Meeting adjourned at the call of the Supervisor at 10 :35 P.M. Minutes taken and executed by the Deputy Town Clerk. 297