HomeMy WebLinkAboutPlanning Board Minutes - June 16, 2020Town of Danby Planning Board
Minutes of Regular Meeting
June 16, 2020
PRESENT:
Ed Bergman
Scott Davis
Kathy Jett
Elana Maragni
Bruce Richards
Jody Scriber
Jim Rundle (Chair)
OTHER ATTENDEES:
Town Planner Jason Haremza
Town Board Liaison Leslie Connors
Recording Secretary Alyssa de Villiers
Public Dana Berger, Marc Berger, Ted Crane, Rich DePaolo, Kevin Feeney, Joel Gagnon
(Town Supervisor), Jim Henion, Katharine Hunter, Brian Miller, Kim Nitchman,
Russ Nitchman
This meeting was conducted virtually on the Zoom platform.
The meeting was opened at 7:06pm.
(1) MEETING WITH STAFF
Planner Haremza reminded the Board that the Layen Rd. case had been held open so it could be re-
notified in the Ithaca Journal with the correct terminology. He said there had been no decision in the Miller
Rd. case, and that public hearing had been closed at the previous meeting. Regarding the Planning Group
update, he thought the tax policy proposal would be the item of primary discussion.
(2) CALL TO ORDER / AGENDA REVIEW
There were no additions or deletions to the agenda.
(3) PRIVILEGE OF THE FLOOR
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East Miller Rd. Case (Case #2)
Chair Rundle said that, because the public hearing had been closed for Case #2, SUB-2020-07
Standard Subdivision, East Miller Road, comments could be made during this time. He noted that Marc
Berger had sent out a statement to the Board (via email).
Marc Berger (165 E. Miller Rd.) said he had learned about the public hearing in May through a sign
posted on the land immediately adjacent to his property, so there had not been much time to prepare for
the meeting. Since the previous meeting, he wrote and circulated an email. He said that, regarding the
findings of the Board of Zoning Appeals (BZA), the BZA had found no clear detriment to the nearby
properties, but this was clearly not the case. He said they also found there was no other alternative, which
he believed to be incorrect as there is ample frontage to carve out a subdivision for a house on the
applicant’s land to the east. He said the applicant needs the subdivision approval because he wants to put
a house there, not because he needs to based on limitations forcing him to do it. Mr. Berger was interested
in knowing the notification requirements for the BZA as he only learned of that hearing at the May Planning
Board meeting, and he asked to see the notice in the newspaper to evaluate its existence and timeliness.
He said he would be happy to answer any questions about what he included in his email.
Chair Rundle said Mr. Berger should have received a notice in the mail about the BZA hearing; Mr.
Berger said he did not see it or recall getting it. Planner Haremza said he thought Mr. Berger was on the list
of addresses notified for the BZA hearing but would check that; the Town cannot guarantee delivery of the
mail through the USPS. He also said he would locate the notice in the Ithaca Journal. Mr. Berger asked if
there are no additional efforts made to notify owners of adjacent properties, to which Haremza said the
notification is for all properties within 500’, so it includes the immediate abutters.
Ted Crane commented that, with regard to Mr. Berger’s comments about notification, he has long
been hoping the Town would do more than the legal minimum requirement of properties within 500’. He
pointed out that 500’ might be only one property in some areas of the Town but many more in the hamlets.
He also said that when agenda item #10, “Zoning Ordinance Revisions,” was addressed, he supports both
changes as described and has been pushing for them for a long time. Katharine Hunter said she agreed
with Crane that 500’ is too short. Planner Haremza said they could return to the larger issue of notification
policy under agenda item #11, “Planner’s Report,” if there was time.
(4) APPROVAL OF MINUTES
MOTION: Approve the May 19th minutes
Moved by Richards, seconded by Scriber
The motion passed.
In favor: Bergman, Davis, Jett, Maragni, Richards, Scriber, Rundle
(5) TOWN BOARD LIAISON REPORT
Leslie Connors (Town Councilperson) shared the following information:
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• A small committee is working on refurbishing the Town’s website. She encouraged people to visit
the website and give feedback, saying that ideas are welcome.
• She said the Town Board had a reopening plan meeting, and there is now protocol in place for staff
to start using Town Hall, including the installation of Plexiglass shields (thanks to Tod Sukontarak
from West Danby).
(6) PUBLIC HEARING
Case #1, SUB-2020-08 Standard Subdivision, 84 Layen Road
Location: 84 Layen Road, Tax parcel 8.-1-1.32
Zoning: Low Density (LD) Residential Zone
Applicant: Jim Henion
Anticipated Board action(s) this month: Public hearing, Subdivision approval
Proposal: Subdivide a 31.73 acre parcel into Parcel 2 (28.69 acres) to remain as open space with
a pole barn structure. No construction is proposed at this time. Parcel 4 (3.04 acres) will retain
the existing single family dwelling. (Parcels 1 and 3 were previously subdivided). The proposed
parcels meet the minimum requirements of the LD District.. Note: the public hearing was
opened on May 19, 2020 and held open so as to re-notify as a standard subdivision.
SEQR: Unlisted action, Planning Board is Lead Agency
Ag District: Tompkins County Agricultural District #2
County 239 referral: NA
The public hearing had been left opened from the May 19th meeting.
No additional comments were made by the public.
As lead agency for the State Environmental Quality Review Act (SEQR), the Board went through the Short
Environmental Assessment Form (SEAF) parts two and three. For part two, all questions were answered,
“No or small impact may occur.” Chair Rundle noted there were no structures being proposed.
The public hearing was closed at 7:25 p.m.
MOTION: The proposed action will not result in any significant adverse environmental impacts.
Moved by Davis, seconded by Bergman
The motion passed.
In favor: Bergman, Davis, Jett, Maragni, Richards, Scriber, Rundle
MOTION: Approve the standard subdivision. (Resolution No. 14 of 2020)
Moved by Scriber, seconded by Maragni
The motion passed.
In favor: Bergman, Davis, Jett, Maragni, Richards, Scriber, Rundle
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(7) PRIOR CASES
Case #2, SUB-2020-07 Standard Subdivision, East Miller Road
Location: East Miller Road between Troy Road and Nelson Road, Tax parcel 7.-1-43.222
Zoning: Low Density (LD) Residential Zone
Applicant: Brian Miller
Anticipated Board action(s) this month: Public hearing, Subdivision approval
Proposal: Subdivide a 105.9 +/- acre parcel into Parcel B (10.17 +/- acres) for a proposed single
family dwelling. Parcel A (95.73 +/-acres) will remain as agricultural land. The proposed new parcel
does not meet the minimum requirements of the LD District. This proposal was granted an area
variance by the Board of Zoning Appeals on 4/14/2020 to waive the 200 foot frontage requirement
per Zoning Ordinance Section 600-5. Note: the public hearing was held and closed on May 19,
2020. No additional testimony will be taken on June 16. The Planning Board tabled the item on
May 19 and did not make a decision at that time.
SEQR: Unlisted action, Planning Board is Lead Agency
Ag District: Tompkins County Agricultural District #1
County 239 referral: NA
Chair Rundle summarized that this is a proposal they had heard last meeting and had some
discussion on. The BZA had granted an area variance for the 200’ frontage requirement. He said Mr.
Berger had commented on the proposal as a resident of the adjacent property, both through an email and
speaking earlier in the meeting. He added that Davis had sent out an email message to the Board, and
Planner Haremza had also sent an email.
Applicant’s statement
The applicant, Brian Miller, said that the lot more than meets the adequate measurements to put
one house on and is above and beyond what they are asking for. He said there are many houses that sit
back 700’ or 800’, so he does not see how this is any different, but he noted a house would not actually be
back that far because of the driveway. He said they have already made a concession for Mr. Berger, and
he thought Mr. Berger would be happy that he was able to enjoy that land at no cost while Mr. Miller was
paying the taxes on it for the last 20 years. Mr. Miller added that this is what a whole transaction is held up
on and pointed out that the property could be used for a thousand other things. He said he is only asking to
release 10 acres of property that he has paid taxes on for the last 50 years of his life.
Mr. Berger responded saying he acknowledged Mr. Miller’s feelings on the matter. He thought
there was an ag exemption for taxes. He said his understanding was that the law requires that for the
variance to be issued there be no other choice or option available to the applicant and that it not be
detrimental to nearby property owners. He said this action would clearly reduce his property’s value as well
as the enjoyment of it. He was not sure what is commonly requested where a variance is concerned, but
this would be a 50% reduction in what is deemed to be suitable for the landscape per the law (200’ road
frontage to 100’). He clarified with the Planning Board that the BZA can issue the variance, but the Planning
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Board has to approve the subdivision. He said the variance takes no account of the structures that could be
placed on the land or their impact on nearby property owners. He noted that the BZA findings said that the
situation was of the applicant’s own creation. Looking at the data and with these factors, he said he has a
hard time understanding what went on.
Mr. Miller responded that the problem was created because Mr. Berger bought one acre of land
from him there. He did not think anything that would go up would decrease the value of Mr. Berger’s
property, and if anything it would increase the value. Via the “Chat” function on Zoom, Russ Nitchman said
that if Mr. Berger wanted to keep his view, he could purchase the lot, which would be fair to all.
Board Discussion
Scott Davis said that he felt the variance granted by the BZA went against both the spirit of giving
variances and the Town’s ordinances. He said it seems it would quite likely impose a financial burden on
the adjacent property owner (Mr. Berger), and there were other options available to the landowner. He
thought it might be, judiciously and at rare times, proper for the Planning Board to override a ruling by the
BZA, and at times incumbent upon them. He described the three things he disagreed with in the process
and ruling: (1) there were many other options for the applicant to parcel off a lot; while it may be more
convenient to put it where suggested, it is not a huge burden to put it somewhere else, which needs to be
balanced against the burden to the neighbor, (2) there was no guidance issued on where the future house
can be sited past where the lot widens to the “flag” part and so the house could be put on the neighbor’s
property line; he felt the placement of the house is crucial as the visual impact on the site could be pretty
severe, and (3) if a variance was going to be given, the BZA should have considered a variance to the side
lot setbacks as that could have allowed the two residences to be further apart. Davis said he was open to
different perspectives and having his mind changed. Rundle asked Davis to clarify his comment regarding
side yard setbacks, and Davis said he meant that if the future house could have been closer to the eastern
property line, it would have been a reasonable distance from the neighboring house. He thought the BZA
ruling was lacking in not addressing this.
Planner Haremza clarified that the Planning Board cannot overrule a BZA decision. He said the two
boards are looking at two different things. The BZA was only looking at the deficient frontage on E. Miller
Rd., and they granted the variance with a condition. The Planning Board can impose conditions of their own
to address concerns they have with the creation of the parcel. He said the Planning Board is looking at the
bigger picture and the larger impacts whereas the BZA’s purview is fairly narrow. He said the Board should
feel comfortable adding conditions if they felt the need. Davis asked if the Planning Board would ever be
able to override a BZA decision, and Haremza said it would be up to the aggrieved party to file a lawsuit.
Rundle said that if he was a landowner who got a variance from the BZA, he might think he was
done. He said it is confusing for the BZA to grant a variance and then the Planning Board to still have a
decision to make. He said the BZA’s decision has a real impact on planning issues, as the Planning Board
might have suggested certain conditions if they had been a part of it. Although he realized that Haremza
was saying they can do that now, he said it seems like a bizarre way of doing it. Haremza agreed that it can
be awkward. He thought it might have been helpful if there had been more guidance from him early on so
the Planning Board could have provided input to the BZA in an official capacity for them to consider in
rendering their decision. He said that might be a way the process could be improved. Elana Maragni said
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the Planning Board could also have done a better job in letting the BZA know their concerns with the road
frontage and the plot. She thought, moving forward, if the Board has a concern with a lot that will become a
BZA decision, they should provide them with as much information as possible. Rundle said there would
need to be a mechanism for the case to come before the Planning Board prior to the BZA, and Maragni
pointed out that this and the Ridgecrest Rd. case did come before the Planning Board (under “Preliminary
Reviews,” Feb. 18, 2020).
Ed Bergman said he thought they were not supposed to be considering what might be built there
when they are splitting properties. He said the applicant is asking to split his property, and so he thought
that is what they could rule on. He asked what it was they were actually voting on to allow. He said that
while the Board could have been more informed about the case before it went to the BZA, they approved
something similar at the previous meeting. There might be good reasons why one flag lot is okay and one
is not, but he thought as a group they needed to think about their priorities so they could get ahead of the
issue.
Jody Scriber asked Planner Haremza if the Board had any options. Haremza said one option is to
include a condition clarifying what would be treated as a side setback (such that the property line where the
lot widens into the “flag,” which is the back of Mr. Berger’s lot, would need a setback). Although it is not
clear that would be regarded as a side lot line, the code could be read to make that determination. A
condition to this effect could be added, with the feet of setback decided by the Board. He said the “pole”
part of the lot is already a no-build area as imposed by the BZA. He mentioned another option, or an
additional option, would be to require site plan review for a future house. That would mean it would come
back to the Planning Board at that point. Scriber said this meant they do have some options to put some
parameters on the case to make it more palatable to the neighbors.
Rundle said he felt there were two issues. One was the neighbor, and the other was that the lot
was very deep. He did not think it likely that a house would be put very far out, but said it was not
inconceivable that someone might put it further out than is desirable. He felt site plan review would allow
the Planning Board to have a say in that as well as the proximity to the neighbor. Haremza pointed out that
if a house was further back, it would have less of a view impact. He said the Town is struggling with
conflicting goals. On the one hand, they do not want the roads lined with houses, and flag lots are one way
to achieve that goal, but then that solution creates other problems. Haremza added that public input is
important, but land use decisions are not made by popular referendum, so one objection should not
necessarily be a determining factor. He reminded the Board that site plan review is not just about the
location of the house but can include other aspects also, like landscaping.
Bruce Richards said he thought they should both prescribe a setback and require site plan review
in the future. He recognized Mr. Berger’s concern, but said Mr. Miller owns the property, has had an
expectation he would have the ability to do something with it the whole time he has owned it, and wants to
do that now. He did not like the idea of completely changing the game on Mr. Miller at this point. He thought
restrictions would annoy everyone so would probably be a good deal.
Kathy Jett said fences make good neighbors, and sometimes you just need to put something up.
She said Haremza would look into the notification, and it was unfortunate Mr. Berger did not recall receiving
the mailing. She said Mr. Miller has been paying on the lot for a long time, and the Board has done due
diligence on their part.
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Maragni said she felt for both parties. She gave a personal example of a lot being sold and a
duplex being built next to her previous house and said that now that she has moved back to Danby, a big
concern is if farmers around her decide to sell their land. She thought it would be beneficial if the Board
treated flag lots differently and with more scrutiny moving forward. In this case, she said she liked the idea
of a setback and asked about the possibility of increasing it in lieu of site plan review, although she noted
she did not want to add to driveway cost.
Bergman agreed that he felt for everybody involved. He said he wanted to wait to see what they
were voting on but thought it would be nice to find a compromise, possibly through setbacks.
Scriber said she, too, felt for both parties. She said the Board could work on preventing getting to
this point in the future. For now, she thought requiring site plan review would be the most reasonable
because adding any more to the setback would get into the issue of the driveway. With site plan review, the
applicant could sell the land, and then the Board could mitigate what makes sense for all involved at the
point something is proposed.
Richards said the 50’ setback all around makes sense, and he was advocating for doing both the
setback and the site plan review. Scriber confirmed with Haremza that they could do both.
Davis had technology difficulties but was able to express that he thought the Board should do a
postmortem on the case. He suggested it as a future agenda item so they would not find themselves in the
situation again. He asked if it was possible to go back to the BZA to allow the house to sit further east, and
Haremza answered it was not. Davis said he thought it had been a healthy, helpful discussion.
As lead agency for the State Environmental Quality Review Act (SEQR), the Board went through the Short
Environmental Assessment Form (SEAF) parts two and three. For part two, all questions were answered,
“No or small impact may occur.” Regarding question #2, Richards asked about the change from agriculture
use to residential. Haremza said that the impact would not be considered moderate to large as it would
likely be a single-family home on 10 acres.
MOTION: The proposed action will not result in any significant adverse environmental impacts.
Moved by Richards, seconded by Scriber
The motion passed.
In favor: Bergman, Jett, Maragni, Richards, Scriber, Rundle
Absent: Davis (technology difficulties)
A motion was made by Richards that would impose two conditions: (1) a 50’ setback from all property lines
and (2) requiring site plan review for any future house. The resolution, updated by Haremza, was reviewed
by Board members via screen share, and minor edits were made. Crane asked a question about clarity,
and Haremza said he appreciated his point, but the conditions would be shown on the final plat, so he felt
comfortable with it.
MOTION: Approve the standard subdivision with the conditions that a 50’ setback is maintained from all
property lines and before a house is built it would be subject to site plan review. (Resolution No. 12 of
2020)
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Moved by Richards, seconded by Scriber
The motion passed.
In favor: Bergman, Jett, Maragni, Richards, Scriber, Rundle
Abstain: Davis
(8) PRELIMINARY REVIEWS
There were no preliminary reviews on the agenda.
(9) PLANNING GROUP UPDATE
Tax policy working group
Discussion focused on the draft State legislation prepared by the tax policy working group. As
described at the April Planning Board meeting, the proposed legislation would allow for “temporary
conservation easements where a tax break is tied to the length of the easement. Danby would need
legislation at the State level to do this. The way the current legislation is written, it includes only a handful of
towns. Danby would be asking the legislature to amend the existing State law to include criteria that Danby
could fit into.”
Rundle said he had sent a list of questions to Haremza; no one else had submitted any in advance.
Ted Crane, Chair of the tax policy working group, said he had prepared additional information and
answered those specific questions, which he shared with the Board (see attached). He also screen shared
a document with assessed value by tax parcel.
Rundle said one of his concerns was that no criteria are listed for easements; somebody might file
a lawsuit and then the cost of defending the Town would come out of taxpayers’ money (question #6).
Crane said towns are allowed to decide the criteria and the other Towns that have done this have not had
challenges. Rundle said the Planning Board has to make sure they are not approving something that then
has issues come up later. He said the Planning Board has had the experience of having language where it
seems like it has discretion, for example with special permits, but then really does not because there are
not defined criteria. He said the attorney’s concern with this has been that if someone takes the Town to
court, the Town would not have a sound basis for arguing against them.
Russ Nitchman said that it would be a tax reduction approved by the State legislature so he did not
think someone would win in court. The trade landowners would be making is no development for X number
of years. He said he is a major landowner, the taxes are horrendous, and the assessed value is going up. If
it keeps going up, he and others would need to sell lots, and nobody wants that. He said the working group
was a very diverse group, and they had a unanimous vote and came to a consensus that this is a win-win
deal. Rundle said that it is the Board’s responsibility to make sure that the proposal will not cause problems
down the road, and R. Nitchman responded that it is already State-approved legislation. Rundle said the
Conservation Advisory Council (CAC) and the Town Board would make a decision on whether to grant an
easement. If somebody was not granted tax relief, would that create a liability? Crane said that a body,
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probably the CAC in Danby, would set out guidelines for decisions on accepting easements, which are then
defensible.
Scriber said she still felt she did not have enough information. She asked if it would be possible to
talk directly to the other places that have done this to find out what their experience has been. She felt due
diligence for her would involve doing this. Gagnon said several people have been asking how the
legislation has played out in towns that have approved it, including Ted Crane, Bruce Richards, and Betsy
Keokosky. He said what Crane had done is to compile these people’s findings and added that while there is
room for more investigation, it would be good to review what has been found already. Scriber said she
needed some time to get comfortable with the idea and understand it, and she remembered that Gagnon
had said the State legislature would not be able to work on this right away. It was noted that the document
prepared by Crane had just been received by Board members.
Rundle said the Board did not have the data before them on how much people are paying in taxes,
how much taxes are going up, and how much people’s land values are going up. He said the proposal
needs data that people can look at so they can evaluate it. Crane directed him to some later answers in the
document. He gave a personal example of his own property, and he discussed how the assessment
process works. Rundle said that, because the proposal is not for permanent conservation easements, he
was trying to balance how much more people are paying in taxes with how much more value their land has
if they sell it.
Crane pointed out that pulling out of an easement agreement would hit someone in the pocket
badly (question #7). Rundle said there are places the proposed law says the Town has discretion, but there
are not criteria that define how the Town would make a decision. Crane said the first thing the CAC would
do is decide what criteria it will apply. Rundle said how well the proposal will work then depends on the
CAC. Gagnon added that the CAC is advisory to the Town Board, and ultimately the Town Board has to
make the decision. Rundle gave a scenario where someone does a 15-year easement and then decides to
sell (question #10), and Crane said nothing would prevent that. R. Nitchman said the Town would get that
open space for that many more years.
Scriber asked about working on conservation easements or different levels of zoning to have a
similar effect. R. Nitchman said there is no tax advantage to a permanent conservation easement at
present. He said he would be unwilling to put his land in a long-term easement while getting nothing in
return and paying the same amount in taxes. Rundle said he understood that, but why not propose the
State provide tax relief for property put in conservation easement? R. Nitchman responded that they could
take action locally and only cost residents $40 or less in a scenario where the top 100 landowners
participated. Crane directed the Board to questions #14 and #15. He said zoning forces you to do things,
and it is preferable to provide incentive for landowners to take action without being forced.
Rundle said the problem is the proposal is not “planning” as you get a patchwork of whoever
applies. He remembered that former Planner Randall said there are not enough zones in the Town, and
farther out there could be zones with a requirement for a much larger acreage. He said that would be
planning—deciding where the Town wants to protect large tracts of land and making it contiguous. Crane
said that is a good idea in the long run, but if you have already identified the large properties and the
owners are willing to restrict development in exchange for an incentive not to develop, you have basically
won the battle, and it might smooth the path to rezoning. Rundle pointed out that this would only be for a
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set time frame and then the land could be sold and the Town loses. Crane said that, for that time period,
development would not have happened, and it would not have cost the Town anything. He added that the
Town has to try to slow down the selling off of parcels for money as much as possible to keep the Town’s
rural character and slow the pace of development.
Via the “Chat” function, Haremza gave the example of zoning as the “stick” and tax abatement as
the “carrot.” Also via “Chat,” Katharine Hunter said that zoning tells a landowner what they can or cannot
do. She emphasized this proposal would be only one part of encouraging conservation in Danby and later
added that the tax advantage is not the only reason for conservation. Gagnon said that the combination of
voluntary and involuntary (zoning) ways of conserving land is most effective. He said this is why the Town
embarked on doing conservation easements in the first place, and this proposal would be another voluntary
way to encourage the preservation of open space. He noted that Ithaca got a lot of pushback for an eight-
acre minimum lot size in their conservation zone.
Rundle said there must be something in between that is not so haphazard, like allowing tax relief in
certain areas but not others. He felt some areas someone might propose an easement would be good
places to have building lots. He also asked the point of the shorter-term easements, like 5 or 15 years.
Gagnon said that, when approaching landowners with the idea of a conservation easement, there is often a
reluctance to tie the hands of future generations in perpetuity. A short-term option might enable people who
do not want the land developed but are not willing to commit forever to do it for an intermediate period of
time. Via “Chat,” Kevin Feeney said that five years gives an owner the chance to dip a toe into the water
and see if an easement works for them; they may then choose to go for longer easements. He said if you
are a more mature owner, a longer period starts to run into the next generation and added that the Town
could bring these owners into the fold and see what develops. If nothing else, it would keep development at
bay for a few more years. Rundle said it seemed like a good deal for a landowner, particularly if they are
not planning to sell the land anyways. To this point, R. Nitchman said via “Chat” that it is not just a good
deal for landowners as their neighbors get an awesome deal too.
Davis commented that the school taxes are not part of the proposal to start, although they could be
later, so he wondered what the acreage would be where this (the monetary savings in exchange for not
developing) becomes a matter of consideration. He asked how much someone would save if they had 20
acres they put in a 15-year conservation easement; Crane thought not much. Crane approximated that a
four-acre property with land valued at $20,000 would have $120 a year in Town taxes and save $60 a year
with an easement, which would probably not be worth the hassle of entering into the contract. Davis asked
at what point the amount of acreage theoretically acts as an incentive as compared to subdividing. He said
it seems the proposal really applies to large landowners. He thought if a large landowner wanted to
subdivide they would, and if they did not they would not, although he said he knows the taxes are a burden.
He said he could see arguments on both sides but was not convinced the proposal was anything but a tax
break for large landowners that might not affect the amount of land set aside in the short term or the long
term.
Regarding the school tax, Crane said that in the other towns doing something similar, other taxing
jurisdictions did buy in. He said it works much better if the school districts agree to participate and added
that for the other towns school districts did largely opt in. For one town, he said it was in the record that an
influencing factor was that it was not going to cost anything. He described it as a rebalancing of who pays,
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not a change in how much money the jurisdiction gets. Via “Chat,” Richards said there are four properties
with conservation easements in Bethlehem, NY and two do not have school exemptions. Also via “Chat,” R.
Nitchman said he felt school districts agreeing was essential, and he said he did not think he would
personally participate without it.
Via the “Chat” function, there was a discussion on development pressure. It opened with R.
Nitchman saying that Danby says it is a town that values open space, but if it refuses to help its large
landowners, they may be financially forced to divide and sell. Richards thought this was an
oversimplification and asked if Ntichman was saying the only reason that land is not developed is that the
taxes were low. He added that land is an investment, and we all pay taxes on our profits. Nitchman said
that he bought his land not for investment but for his love of conservation. He said what he meant was that
higher taxes push for development as they twist a person's arm and make them sell when they would not
otherwise wish to. K. Feeney added that the rising taxes change the calculus of owning larger properties,
which impact the viewshed for others. As taxes rise, people run up against their ability to afford to keep
land undeveloped, and that pressure may force some landowners to develop when they do not want to. He
said he knew of several considering it currently. Richards said the destruction of our forests has been
hastened by the increase in holding costs, and he noted that big companies can use 480-A but the rest of
us do not ultimately cover our tax bill. He agreed that the property tax-based system of financing the Town,
County, and schools does not reward home ownership and owner conservation of fallow land. He
expressed agreement with the tax reduction but not the short-term easements or rewarding public access.
Richards also said he had thought there was not huge pressure for development in the Town, rather that
(land for) fill-in development was hard to come by.
Scriber did not think the Board would resolve this at this meeting. She thanked Crane for the
information and said they would need time to take a look at it. She suggested taking the issue over into
another meeting. Rundle agreed. Gagnon said he would like not to be in the same position at the next
meeting and suggested raising questions ahead of time so they could be addressed in the interim. Crane
asked about the possibility of scheduling a special meeting to focus on the issue. Maragni said she thought
that was a good idea, and she said it would be better to spend some dedicated time on it and come
prepared with questions rather than discussing it over the course of months and forgetting what they talked
about at the last meeting. Via “Chat,” Kim Nitchman suggested a meeting of the Planning Board and the
Planning Group specifically on the topic. Crane stressed that if he gets questions ahead of time, he can
have answers prepared. Rundle wanted to see how much people are paying in taxes and how much the
land is appreciating.
It was agreed that questions should be sent to Planner Haremza. Haremza asked the Board to be
very careful about discussions about Planning Board business occurring outside Planning Board meetings
due to the Open Meetings Law.
Other working groups (Conservation, Hamlets, Public Outreach)
It was agreed to skip these updates for this meeting. Haremza said the “Planning Group Update” is
a standing agenda item so as to keep communication open in both directions between the Planning Board
and the Planning Group.
11
PLANNING BOARD MINUTES
(10) REQUEST BY TOWN BOARD FOR ZONING ORDINANCE REVISIONS
The first item to consider was, “Remove statement ‘Other uses...deemed by the Planning Board to be
similar in nature and compatible with the purposes of the zone’ (Sections 600-3n, 601-3b, 602-3d, 603-
2d(x), 603-3d(x), 603-4d(xiii)).”
Rundle said the Board has said over and over again that the statement should not be there, and the Town
lawyer has also told them this.
MOTION: Remove the statement that is in the agenda, item #10. (Resolution No. 15 of 2020)
Moved by Scriber, seconded by Richards
The motion passed.
In favor: Bergman, Davis, Jett, Maragni, Richards, Scriber, Rundle
The second item to consider was, “Require site plan review for all agro-business development if there will
be activity that will attract customers/public and employees such as tasting rooms and processing facilities
to ensure access/traffic/other non-agricultural impacts are adequately addressed.”
Rundle said he thought they would need to see a resolution to consider. Haremza suggested that a
committee could be formed to address this, but nobody was ready to step forward at that time.
(11) PLANNER’S REPORT
Planner Haremza gave a brief report:
• The RFQ for the hamlet grant would be posted the next day. He said this is the $10,000 County
grant to look at options for infill development in the hamlet and how to address the water and septic
issues on smaller lots. It will wrap up at the end of the year or in early 2021
• The owner of the Howland Rd. hemp operation has been non-communicative. He, Town
Supervisor Gagnon, Code Officer Cortright, and the Town Attorney are continuing to work on the
situation.
• Regarding public notification, as discussed earlier in the meeting, he said the Board could consider
forming a committee to discuss the issue further. The Town has been considering switching from
letters to postcards, which would save the Town money. It would still be for everyone within 500’.
He said the Town might want to explore requiring signs for site plan reviews and zoning variances;
right now they are only required for subdivisions. These might be more effective as people notice
them when they drive or walk by.
(12) ADJOURNMENT
The meeting was adjourned at 9:22pm.
12
PLANNING BOARD MINUTES
13
PLANNING BOARD MINUTES
___________________________________________
Alyssa de Villiers – Recording Secretary
This presentation has two parts:
●Background information gathered from Town and County Officials
●Answers to questions posed by the Danby Planning Board
Given the limited time to prepare the answers to questions in the second part, there’s
more to be said...just not the time to put it into writing.
ted crane
Background Information
Four Towns in NY State have been granted the right to offer tax exemptions to land
owners who contract with their Town to grant a Conservation Easement. These are:
●Bethlehem, in Albany County
●Orchard Park, Eden, and Elma, in Erie County
I approached officials, both elected and appointed, in all four Towns. I had lengthy,
informative conversations with representatives from three Towns. Elma did not return
my phone calls, but indications are that it is much like Eden.
These “491 Programs” Towns can be categorized in several ways
●Town Size: large: Orchard Park, Bethlehem; small: Eden, Elma
●Program size: large: Orchard Park; small: Bethlehem; non-existent: Eden, Elma
●Age of program: 15+ years: Orchard Park, Eden, Elma; recent: Bethlehem
Eden, Elma
Eden has about 3,000 properties, somewhat more than Danby. It has a Town tax
assessor, one of the old school. It currently has an equalization rate of 51 percent (a
property valued at $100,000 is assessed at $51,000). Reassessment occurs, as a rule,
when a property is sold.This could not be more different from the situation in Tompkins
County, which has a County-wide assessment department, a 100 percent equalization
rate, and reassessment of all properties in each Town on a rotating, 3-year cycle.
There are no 491 properties in Eden. The assessor doesn’t even have a Section 491 in
his assessor’s manual. Eden offers NO insight into the effects of 491 easements and
exemptions.
Bethlehem
Bethlehem has about 13,800 properties.
There are four (4) properties with 491 easements/exemptions in Bethlehem, totalling
31.3 acres. Bethlehem’s guidelines for establishing 491 contracts includes a minimum
of 5 acres; one of the properties is smaller than that, but was accepted because it
accompanied a larger parcel.
Two of the properties are owned by non-profits, so the 491 contract has no tax
consequences, there would be no tax liability in any case. From the sound of it, the 491
contracts on the other properties were also adopted for conservation reasons, not for
tax advantage.
There are apparently several additional 491 contracts in negotiation.
The 491 program in Bethlehem was adopted by Albany County and by the Bethlehem
Central School District (the largest, by far of the three School Districts covering
Bethlehem). The minutes of the BCSD meetings indicate that adoption was facilitated
by the fact that the 491 program is revenue neutral, it would have no effect on the
District’s tax levy (the same is true for all taxing jurisdictions).
Orchard Park
Orchard Park is probably the most indicative Town with respect to the impact of a 491
program in Danby.
Orchard Park has approximately 12,500 properties and 70 of them are in the 491
program. The scaled-down equivalent in Danby would be about 11 properties out of
2,000.
The dollar value of exemptions granted to 491 properties in Orchard Park is about
$2,300,000, compared to a total land assessment of $325,000,000; this is about 0.7
percent of the total. The properties include about 1,200 out of 24,600 acres in the Town,
about 4.8 percent of the total (ignoring the fact that about ¼ of Danby’s acreage is
State-owned forest land, the scaled up equivalent in Danby would be about 1,700
acres). The average property in the 491 program is only about 17 acres; the financial
incentive is not huge.
Of the 70 contracts in Orchard Park, 44 are perpetual, 21 are 15-year (the minimum), 2
are 30-year, and 3 are 50-year.
Substantially all of the properties in the 491 program entered the program at its
inception. Few, if any, have been added since then. Most of the 15-year contracts are
being renewed but at least one landowner dropped out when her 15-year contract
expired; she cited the newly-imposed requirement for a survey (and its cost) as the
reason for not renewing. Judging from the preponderance of perpetual and long-term
easements, conservation was a significant motivator in Orchard Park.
Both Erie County and the School District adopted 491 exemptions for properties in
Orchard Park.
The assessor had one strong piece of advice: keep good records of which properties
are in the program, and for how long.
Planning Board Questions
1. Explain what Section 491 is.
NYS Real Property Tax Law provides the right, on a town-by-town basis, to grant tax
exemptions to properties that establish Conservation Easements with the Town. The tax
exemptions increase with the length of the term of the easement. The exemptions are on
the land value only, not any buildings or other improvements.
2. Is there a distinction between the value of the property and
the value of the land? Doesn’t assessed value include structures
as well as land?
Yes. The assessment department provides TWO values for each property: the land venue
and the total value (value of structures, etc. is the difference between the two).
3. Is commercial property included in this proposal?
Simple answer: This is not specified by Section 491, nor, necessarily by the Town laws that
must be enacted or order to implement Section 491.
More exact answer: What kind of commercial property? The Town, through its
Conservation Board, can establish criteria for the acceptance of proposals of Section 491
Conservation Easements. The criteria, however, must determine that the property must
have “conservation value” to the Town. Most commercial properties, presumably, don’t. A
notable exception might be the commercial activity associated with farming.
4. Certain commercial operations are allowed in non-commercial
zones; would these be included?
See Question 3. It’s not what kind of zone the property is in, it’s whether the property
(including ongoing activities) has conservation value to the Town.
5. If the value of the 100 largest parcels is only 5% of the
total assessed value, then what percentage of Danby’s assessed
acreage would be affected? (Note that the Danby State Forest is
not counted).
Ouch, detail of answer limited by the time allowed to prepare an answer.
Some round numbers. Danby is about 34,300 acres. Let’s estimate the State Forest at ¼ of
the total, leaving 25,700 acres. The 100 largest properties total to about 12,200 acres, or
about 47 percent of the land in the Town! Some of these properties may not be appropriate
for the 491 program (commercial, etc.) and some are already tax exempt.
6. What criteria would the conservation board and the Town Board
use to decide if a proposed tax exemption would benefit the
Town, or how an agreement might be negotiated? By what criteria
may the Town accept a proposal, or modifications, or reject a
proposal?
The requirement in Section 491 is,
Such conservation board shall investigate the area to determine if the
proposal would be of benefit to the people of the town and may negotiate
the terms and conditions of the offer. If the conservation board
determines that it is in the public interest to accept such proposal, it
shall recommend…
In other words, the Town, via its Conservation Board gets to set the criteria. The CB would
most likely establish criteria for evaluation at the outset of the program, and then apply
them to determine whether specific proposals should be accepted. There is no reason to
believe that contracts would be granted to properties without conservation benefit to the
Town.
7. There is also discretion permitted in the granting of
petitions to withdraw from an agreement, for “good cause”. What
would constitute good cause? What would not?
This is properly a question for a lawyer. The important issue, though, is that if an easement
is broken, the property owner becomes subject to financial penalties: five years of financial
benefit accrued via the Tax Exemption plus six (6) percent interest, compounded annually.
These days, that’s a significant downside; requests to withdraw aren’t going to happen
frivolously.
At the same time, if the Conservation Board negotiates a careful contract with the
landowner, and then the property owner violates its terms, the contract can be terminated
for cause by the Town. Again, there are significant financial penalties to the property owner.
This helps prevent frivolous easement proposals by land owners.
8. If the School Board doesn’t agree, what would be the impact
on an owner’s taxes?
The County, the School District, and other taxing jurisdictions are allowed to opt in to the
Section 491 exemption. Experience in other Towns indicates that they will do so because it
costs them nothing.
If other taxing jurisdictions do not opt in, the owner does not get the benefit of the
exemption with respect to those taxes. They still get the benefit of the Town’s exemption. In
2020, the Town tax rate is about 6 per mil, or 0.6 percent of assessed value (that is, $6 per
$1000). In round numbers, the County 3.8 per mil, the Fire District 1.6 per mil, and the
School District gets 16.8 per mil.
9. If the Town opted out of the exemption, would existing
agreements have to be honored? Under subsection 3(f), “Such
agreement may not be cancelled by either party.”
The first question is really for a lawyer. My guess is that if the Town could revoke the law it
passed, existing perpetual contracts would stand, and I see no reason why existing
temporary contracts would be ended; there is no financial benefit to the Town to do so.
See also section 5 of the proposed law and the answer to question 7 above.
10. Suppose someone 50 years old decides to apply for 15 years
of tax relief. At the end of that period, the value of the land
will have increased, perhaps doubled. Then he or she divides the
land into parcels, sells the land at the appreciated value, and
retires to Florida. Would any provisions in the proposed law
would prevent that?
No.
Many variants of this question have been heard. The issue to bear in mind, though, is that
the easement protects Danby’s quality of life while it is in effect. It also gives the Town an
opportunity to create zoning that might forcibly (as opposed to Section 491’s voluntary
method) protect Danby’s open space and rural character.
The methodology employed by Tompkins County’s Assessment Department is intended to
have assessed values track the real value of every property. Therefore, there should be no
sudden increase in the value, assessed or resale, when the contract ends.
Viewed from a conservation point of view, it is not clear that the contracts are for years of
tax relief; they are for years of protecting the environment, open space, rural character, and
the quality of life of Danby residents in general.
11. How much are property owners in Danby paying in local tax,
state tax? How much has property appreciated in value over the
past 5 years? Pick something as an example.
The second question is easier! It doesn’t matter. Assuming (as I do) that the assessment
department applies its rules fairly and equally, then the increase in assessed value is
“across the board” and does NOT affect the actual tax paid by any one property owner.
Question 1(b) is also simple: I don’t know. State tax is income tax, not property tax.
Question 1(a), finally, is also simple: property owners pay “local” tax equivalent to the Town
of Danby Levy, a fancy term for its budget. In round numbers, the Town’s budget for 2020
is about $2,000,000 plus $560,000 for the Fire District.
12. Suppose the assessed value of a property is $500,000. How
much would the owner pay in taxes in 15 years? At the current
rate of appreciation, how much assessed value might that
property gain in 15 years?
Let’s assume you’re talking about local (Town) tax? And that the tax levy doesn’t change?
Well, according to the answer for question 8, the Town’s current rate is 6 per mil. In 15
years, that would be 90 per mil, and a $500,000 property would pay $45,000 to the Town.
To be fair, though, there is NO property in the Town with land assessed at $500,000. The
three most “expensive” properties in town, averaging more than 250 acres, have their land
assessed at $368,000, $316,600, and $303,100. All three appear to be in Agricultural
Districts, so their tax is based on lower figures. The most valuable property is already
tax-exempt (Land Trust).
13. The proposal states that four other towns in NYS have
enacted similar legislation. Does this proposal differ in any
way from theirs? If so, in what way(s)? How long has the
legislation been in effect for those towns? Have those towns
tracked the sale of land in their towns to see if the
legislation seems to be having the intended effect?
See the first half of this document.
This proposal includes a number of small changes and two significant ones: the addition of
a trial, short-period exemption (to give owners a chance to kick the tires, so to speak) and
the addition of an incentive to go beyond simply preserving open space—to allow public
access opportunities to the conserved property (parks, playing fields, trails, ponds, etc.).
Three of the four Towns have minimal actual involvement with Section 491. The fourth is
well satisfied with the program. No sudden sales at the end of contract periods were
reported.
14. Why should the Town choose this method of preserving open
spaces rather than by zoning?
Zoning is, to put it bluntly, punitive and forcible. It’s only one of many tools in a planner’s
armory, but it’s the one that has the potential to cause the most dissention from property
owners who feel their prerogatives have been usurped. Encouraging land owners to
voluntarily preserve open space and rural character is far preferable.
Bear in mind, whatever the zoning is, some things will be permitted that, down the road,
may have unexpected and possibly undesirable outcomes. Zoning cannot achieve the
same positive effects as voluntary easements.
15. Why not ask the State to provide tax relief for property
that is put into conservation easements? If property owners do
not wish to do that, then doesn’t it suggest that they want to
be able to sub divide at some point in the future? How does that
benefit the Town?
NYS already provides some tax relief of this sort, but it is limited in scope and dollar value.
An owner paying $25,000 in property tax can only claim $5,000 in credit, and is still paying
$20,000. A 50 percent exemption (for a 15-year easement) might be worth $12,500 to this
owner, in addition to the $3,125 from NYS.