07/14/04


A Work Session of the Clarence Town Board was held July 14, 2004 at Clarence Town Hall, One Town Place, Clarence, NY.

Supervisor Kathleen Hallock called the meeting to order at 6:00 P.M. Members of the Town Board present were Council Members’ Ian McPherson, Scott Bylewski, Joseph Weiss and Bernard Kolber. Other Town Officials present were Deputy Supervisor Anne Case, Director of Community Development James Callahan, Town Attorney Steven Bengart, Town Engineer Joseph Latona, Senior Building Inspector David Metzger and Town Assessor Dave Folger.

Town Assessor Dave Folger/Patty Valvo State of NY Office of Real Property

Six years ago the Town of Clarence entered into a six year program with the State of NY to maintain annual assessments. The six year program is up this year. Town Assessor Dave Folger has called this meeting to see if the Town Board wishes to continue on with another six year program. Clarence is one of the original fifteen towns that do annual assessments, we have received nearly a half million dollars in maintenance aid from the State of NY.

Patty Valvo stated that under the current legislation that was written in 1998 to begin in 1999 was for $5.00 per parcel per year for six years and then drop to $3.00 per parcel. Which meant that under the current legislation, in 2005 it would drop to $3.00. Under the proposed legislation for this year, the $5.00 figure is supposed to continue on for the next six year cycle. We can not be sure of this yet because we do not have a state budget. If it does not go through, it will drop to $3.00 per parcel. Anyone that goes into the six year plan can drop out at any time for any reason; it is the town’s option.

The advantages of maintaining level of assessment at market value, the longer it has been since a municipality has updated assessments, the more likely it is that some taxpayers are paying more than their fair share in taxes. Up-to-date assessments eliminate unfair assessments and the “sticker shock” that taxpayers experience when assessments are adjusted after years of neglect.

By maintaining assessments at market value each year, municipalities can consistently receive an equalization rate of 100. This eliminates shifts in the school and county tax apportionment due to fluctuating equalization rates.

In addition to State Aid, many municipalities are receiving improved bond ratings as a result of their efforts to keep assessments current.

By keeping assessments up-to-date, municipalities are likely to have fewer tax certiorari cases.

Town Assessor Folger stated that because of the way the residential market has been, he has needed assistance in maintaining the annual assessments and it has cost the town approximately $75,000 a year. Once the market quiets down, he can do more in house and not involve an outside vender. Another complaint Mr. Folger has heard is that while the town maintains 100% values, the rates keep going up. If the values go up, the rates should go down; the school districts are the biggest problem in this area.

It was the consensus of the Town Board to continue with annual assessments.

Town Attorney Bengart will draft a resolution.

Director of Community Development James Callahan Review of Agenda items

A Public Hearing is scheduled for 7:45 P.M. to consider the purchase of approximately 21.4 acres of property located on Gunnville Road at a purchase price not to exceed $42,800.


Formal Agenda items

Towne Automotive 5411 Transit Road

Applicant requests a Public Hearing to consider a Special Exception Use permit for construction of a new automotive sales facility. The Planning Board has forwarded a recommendation with conditions.

Paul Kowalski 9775 County Road

Applicant requests a wholesale and retail firewood processing facility in the Industrial Zone. The proposed site is located on approximately one acre of vacant land behind the Brawdy Construction Building. The applicant will not construct any buildings; the proposed site is strictly a staging area for delivering/cutting/splitting/storing/selling firewood.

Work Session items for consideration on the 7/28/2004 Formal Agenda

Don George 10295 Main Street

Applicant requests an Outside Display Permit for recreational vehicles. There have been several on-going issues with blocking of the sidewalk.

Joe Skok 8655 Transit Road

Applicant requests a Change in Use from vacant (former Belknap Heating & Cooling) to spray-on bed liner facility.

Gerry Edbauer 4555 Shisler Road

Applicant is requesting a building permit for reconstruction of an industrial building recently destroyed by fire.

Attorney Anthony Parloto gave a short presentation. Mr. Edbauer has been doing business in the Town of Clarence since 1985, is a good tax paying citizen and has never had any problems with the town in the past. Mr. Edbauer’s building was destroyed by fire on June 26, 2004. Unfortunately, the peril was a non-insurable peril. Mr. Edbauer also did not have loss of business insurance; due to the nature of his business he could not obtain affordable insurance.

As a result of the fire, Mr. Edbauer has basically spent all of his savings to clean up the property to where it is today. He has removed fourteen truck loads of debris to date however, there is still much more to do. This is a huge, expensive undertaking unfortunately, due to the fact that there are no insurance proceeds available, Mr. Edbauer has reached his limits on his financial ability as of this week. On behalf of Mr. Edbauer, Attorney Parlato is asking the Town Board to bear this in mind on the considerations. Mr. Edbauer is currently loosing customers; he does not have a building or equipment to maintain his customer’s needs. If this continues, Mr. Edbauer will be out of business in a very short time.

Mr. Villani from GUI’s Lumber has offered his assistance to Mr. Edbauer. He has offered to finance the balance of the cleanup, finance the equipment needs that Mr. Edbauer will have to reestablish his business as well as finance the build-out of the new building. Mr. Villani has also provided his on staff workers to build the new building. The workers will be available starting next week assuming the Town can rush the plans along. In the event that Mr. Edbauer can not get started early next week with the build-out, and the rest of the clean up, unfortunately Mr. Villani crew will be shipped to the southern tier where they will begin a 12 – 16 week project. Meaning that those funds and the workers will not be available for some time which will mean Mr. Edbauer will not only be out of business but will be filing for bankruptcy protection and the process will stop, leaving a mess at the site.

Mr. Parlato is here this evening to ask the Town Board to waive its two week review policy and allow Mr. Edbauer to go directly to the Building Department on either Friday or Monday and present his plans for the new building and start the permit process immediately. With Mr. Vollani’s finances, employees, architects and engineers assistance they feel that by Friday and no later than Monday morning, all the engineering plans, and the needs of the building inspector will be available. This is an enormous request but Mr. Parlato feels that because of Mr. Edbauer’s personal financial situation he asked for a waiver and assistance with moving the permit process forward.

Councilman Bylewski stated that he is concerned that there are no plans.

Mr. Parlato stated that the plan is basically to rebuild the building that was there, they are not asking to expand the size or dimensions of the building or change it in any significant way. The land survey was presented to Director of Community Development James Callahan this evening to show the plotting of the building.

Supervisor Hallock stated that she would like to do whatever can be done to move the process along however; there is a law suit pending. Town Attorney Bengart stated that it would not necessarily jeopardize pending litigation however, we would be setting precedence.

Councilman Bylewski stated that the Town Board agenda policy for land use proposals has an exception clause based on a case-by-case determination of the Town Supervisor in consultation with the Planning & Zoning Department.

Building Inspector Dave Metzger stated that if the drawings come in next week, it will take him four or five days to review them and make sure everything is there. There are always things that need to be resubmitted.

Councilman McPherson stated that he believes that due to the emergency circumstance, we can word something so that the building being put there is not inconsistent with either what was there or what is near by such as the Parks Department Building. We would have to concede some approval process in the Planning Department and Building/Engineering Department to get this done. Councilman McPherson stated that he fully realizes the emergency situation which is one of the reasons why he opposed the two week delay on any and all projects.

Motion by Councilman McPherson, seconded by Councilman Weiss to make an exception if possible in this case and consideration is given to the circumstances that one of our long standing businesses find themselves in. Town Attorney Bengart stated that he understands that however, his concern is we are setting precedence and if the Town Board is prepared to do that, it is not his call. Councilman McPherson stated that if the procedure exception says “case by case” then we can take action on this case. On the question, Councilman McPherson stated that what he is saying is that we are entrusting to our Planning and Zoning Office and our Senior Building Inspector the responsibility to although we are expediting this to comply with the rules and regulations that would be in place if we went through the protracted policy extension period that we already have. Town Attorney Steven Bengart said that the reason if he understands this is if the Town Board were to approve this would be because of the hardship and because in this individual case due to a fire and loss of business, bankruptcy and all the other issues that were raised by Mr. Parlato. Councilman McPherson stated that this is totally non precedence setting because all exceptions are case by case decisions. Mr. Parlato stated that in this case, Mr. Edbauer also has a very limited window of support for financing and someone that is willing to pay the entire bill for everything and finance the entire venture without asking for bank commitments and all the other things that go along with it. Town Attorney Bengart stated that more importantly, it is not really the financing from this Board’s point of view that is our concern; our concern is loss of business and the ability to go out of business as a result of this. Those are the issues that are creating the hardship all due to the fire. Councilman McPherson stated that the hardship that we would endure if Mr. Parlato’s statements are correct and Councilman McPherson has no reason to believe that they are not is that it would impede the cleanup process which would create a hazard for anyone who goes around that area so he would like to see it done. Town Attorney Bengart stated that he understands, he just wants it on record. Councilman Bylewski asked who was monitoring the cleanup process is it being conducted through the DEC. Supervisor Hallock asked about soil contamination. Mr. Edbauer stated that he has not really gotten down to the point of soil contamination yet because they have been cleaning out building debris, sheet metal, wood. Supervisor Hallock asked if this would all be removed. Mr. Edbauer stated that it will all be removed if he can get this expedited to the point where Curt Villani can come in and do the building and finance it. If he can’t do that and Mr. Edbauer looses him as a contractor, Mr. Edbauer will not be able to proceed. He spent his savings on the clean up so far. Councilman McPherson asked if it was safe to say that as far as the contamination is concerned that Mr. Edbauer will not be removing anything from the site. So if there was anything there, it is going to stay there? Mr. Edbauer said that was correct, the soil will stay there. Supervisor Hallock was told by Mr. Edbauer earlier in the week that he was taking off three inches of soil. Mr. Edbauer stated that what he will do if he has to is to take the soil only in one area where they feel there might be contamination from old lead paint. The sand area is a 20’ x 20’ area that is cleaned up three or four times a year and shipped out. Attorney Parlato stated that this is all regulated. Councilman Kolber stated that the shipping out is regulated but not what is there. Councilman Kolber has two concerns one being the contamination of the soil in that area and what precedence are we setting and is this going to come back and haunt us. Town Attorney Bengart stated that is why he wants this record to be complete. Councilman Kolber asked if there is a temporary facility Mr. Edbaurer could use in the mean time while reconstruction is taking place. Mr. Edbaurer stated that there is not because sandblasting in NYS was grandfathered in approximately four years ago and they are not allowing sandblasting businesses to start up so he can not just take his business and move it to some other facility, the state will not allow it. Councilman Bylewski had questions for the Planning and Building Department – if the Town Board were to act upon this today, does the Planning Department have enough guidance that they can make any appropriate determination that would be necessary regarding the rebuilding of the facility. Director of Community Development James Callahan stated that everything is pretty much in place, once the setbacks are achieved; they are basically just replacing the footprint. Senior Building Inspector David Metzger stated that if the Board is comfortable with the land use and the location, the setbacks are going to be slightly different than what they are now by about two feet it will be moved over just slightly and depending what the engineer comes up with for a design. Councilman Bylewski stated that because this is a case by case determination, because it is an emergency situation for a number of reasons: 1) because the building was destroyed by fire, 2) which given all the extenuating circumstances surrounding it especially during the cleanup that it does appear if it is the Supervisor’s prerogative to do in consultation with Planning and Zoning then that’s where it falls. Supervisor Hallock stated that she is concerned about the questions she raised the other day with her conversation with Jerry Edbauer about the cleanup. Councilman Kolber said there was a motion made and seconded, should this be done in the regular Town Board meeting. Councilman McPherson stated that this item was not on the agenda. Supervisor Hallock stated that we can make a motion at this meeting and make an announcement at the regular Town Board meeting out front. Councilman Weiss asked Senior Building Inspector David Metzger if he could get together with Jerry Edbaurer and get those things together within the time frame he needs for his financing. Building Inspector Dave Metzger said he would think so. Councilman Kolber would like to include in the motion that no soils be taken off site without prior testing so anything there stays there. Councilman Weiss suggested getting a directive from someone like Dave Metzger, do we want to keep the soils, rather than doing it arbitrary – we need a determination. Senior Building Inspector David Metzger stated that once all the debris is removed and we can take a look at the site, sometimes these things are better left as is however if it is removed, it should be done properly. Supervisor Hallock asked how we would determine that. Senior Building Inspector Dave Metzger stated that you would look at the condition of the soil. Worse case scenario is to bring an environmentalist to evaluate the soil and do some testing to see if there is any potential contamination. Councilman Kolber stated that once they starting digging the foundation, they will be excavating though that. Dave Metzger stated that this is a pole barn type structure and chances are they will be using some of the same holes. Jerry Edbaurer stated that this is a pole barn type construction; the poles were lifted out of the holes and will be redrilled. Town Attorney Bengart stated that while we are still on the question, he was not sure if the motion should be amended but his only additional statement is if we need the determination by the Supervisor that this is the case that you have made the determination and that you consulted with the Planning Department but consulted with various other departments. It is the Supervisor’s determination and the motion should be amended to reflect that. Councilman McPherson stated that he said “in conjunction with the Planning Department, Building/Engineering” Councilman Bylewski stated that it is the Supervisor’s determination. Councilman McPherson stated that what he is doing is giving Town Board support for the Supervisor to go ahead and move forward in this emergency situation in an isolated case by case situation. Upon roll call - Ayes: All; Noes: None. Motion carried.

Cobey Inc., 9505 Main Street

The proposed site is located on the south side of Main Street, west of Gunnville Road. Applicant is requesting approval for a 3,219 square foot addition to the existing building. Applicant is proposing to update the façade of the entire structure.

Roy Jordan 8587 County Road

The proposed site is located on the south side of County Road, west of Green Acres Road. Applicant requests Development Plan approval for construction of a 4-lot Open Development area with three frontage lots.

Angelo Natale 9276 Main Street

The proposed site is located on the north side of Main Street, east of Thompson Road. Applicant is seeking to amend the original concept on the project to change a previously approved storage building in the rear of the property to a 4,500 square foot office building.

Martin Bronisz 4611 Shisler Road

The proposed site is located on the east side of Shisler Road, south of Main Street on 1.68 acres +/- in the Agriculture Zone. An existing single family home exists on the property. Applicant is seeking to operate a small portable log cutting business on the property, mainly located in an existing accessory structure located on the property. The Planning Board has forwarded a recommendation on the proposed site. Director of Community Development James Callahan stated several neighbors came in after the Planning Board meeting very upset and concerned about the noise and the operation as proposed.

Supervisor Kathleen Hallock

Supervisor Hallock has a resolution authorizing her to sign an agreement between the Town of Clarence and Wendel-Duchscherer relative to the development of a Parks and Recreation Master Plan for the Town of Clarence.

A Resolution has been prepared for the purchase of the Gunnville Road property if the Town Board decides to go forward with that.

Supervisor Hallock received a Block Party request.

County Legislator Michael Ranzenhofer has forwarded a resolution relative to State support of Community Preservation Fund. A similar resolution was passed by the Erie County Legislature.

Wednesday morning Work Sessions will be scheduled for September 1 and October 6, 2004.

Supervisor Hallock reminded everyone of the Capital Improvement Projects meeting Tuesday, July 20, 2004 @ 1:00 P.M. The Town Board, Community Development Director, Engineer, Attorney, Director of Finance and Fox & Co. will participate.

Supervisor Hallock received a complaint about a hangout on Town owned property behind the ball field at Parker. Asst. Director of Community Development James Hartz took pictures today and verified that it is on Town property. Supervisor Hallock will advise Parks Crew Chief John Burns to have the Parks Department take down any make shift buildings and advise Parks Security to patrol the area.

Two items were not posted on the Agenda and Supervisor Hallock will act on them tonight: the minutes of the June 16 Special Meeting w/Sports Coalition and the list of bills for July 1 st and 15 th.

The Town Board was copied a letter from TCBA about baseball tournaments the next two weekends at Meadow Lakes Park. The league reserved the fields but not the pavilions; they are expecting several hundred people. The pavilions are reserved by private parties. The TCBA is requesting Town Board approval to set up three temporary shade canopies. The Town Clerk’s office talked to Parks Crew Chief John Burns and they decided that portable toilets should be ordered. In the past, Parks has ordered them and billed the organizations; the cost is $40.75 each. Security has also been notified to handle any parking concerns.

Open Space Fees were raised to $450 last fall but we just realized that they were still being charged the previous amount. The situation has been corrected and for auditing purposes, Supervisor Hallock will make the announcement that it has been corrected. It was just on the non-subdivision residential lots. Any subdivisions that had prior approval will still be charged the $250.fee.

Intern Cara Pavlock has been working in the Supervisor’s office on several projects. She is talking to the departments in order to get updated information on the website. The Youth Center and Senior Center monthly schedules are now on the website. Those groups will send over periodic updates.

Clarence-Newstead Meals on Wheels will have Monte Carlo Night Saturday October 2, 2004 and would like the Town officials to donate a basket to be raffled off unique to business or organization. Any suggestions are welcome.

Supervisor Hallock received a list of publications from Government Finance Officers Association. The list will be passed around if anyone is interested in any publications, mark them down and pass the list on.

Councilman Ian McPherson

Councilman McPherson has some announcements regarding upcoming events.

There are two openings on the Senior Center Board. It was discussed at their last Executive Meeting that an attorney would be preferable for one of the appointments and someone with a sociological background for the other.

Councilman Scott Bylewski

The Clergy Association has scheduled their Crop Walk for Sunday September 26, 2004 at 1:30 P.M. More information will be forthcoming.

Councilman Bylewski will make a motion to have the EMS Board solicit proposals for a new joint municipal contract for pre-hospital emergency medical services.

Director of Civil Defense Dave Bissonette would like to conduct a town wide test of the reverse 911 system in the near future. The cost of that would be $3,326.40.

The disaster table top exercise will be scheduled for Saturday, October 9, 2004 at 9:00 a.m. The exercise will include the Town Board and several outside agencies.

Councilman Bylewski will report on the number of building permits issued.

Councilman Bylewski will announce that Reas Graber has resigned from the Planning Board. Councilman Bylewski will also announce that we are accepting applications for a Planning Board member and/or alternate position. There have been discussions in the past as to whether the alternate automatically moves up or should it be an open position. Councilman Bylewski is suggesting leaving the application field open for one month.

The Parks and Recreation Master Plan Review Committee have completed a thorough review of the submitted proposals.

There is a work shop agenda for the adequate public facilities ordinance. A representative from Freilich, Leitner & Carlisle will interview applicants on July 27 th and 28 th, 2004. On July 28 th, a public presentation will be given regarding adequate public facilities ordinance proposals as well as the results of the various interviews.

The Municipal Review Committee has failed to generate a majority vote to make a recommendation under the SEQRA on the Visone Open Development area located at 4640 Goodrich Road. In talking with Director of Community Development James Callahan, there are two possible alternatives to consider:

1) Issue a Negative Declaration on the proposed 4-lot Open Development area, identifying that the Open Development portion is separate and isolated from other future uses on the adjoining lands and identifying that use of the remaining lands is speculative and may never occur and will require additions reviews under SEQRA if ever a more formal submittal is forwarded.

2) Identify that the project is impermissible segmentation and that the Town Board will require a full build-out analysis for all lands controlled by the applicant. Under this scenario, the applicant should formally submit a design for full build-out on the entire property for consideration. As the Town Board has in force a moratorium for new subdivision review, such an application would have to wait until the moratorium is lifted.

Based on the review of the file, the minutes and in talking with the Planning Department and members of the MRC, Councilman Bylewski is inclined to go with option #2.

Councilman Joseph Weiss

CouncilmanWeiss has interviewed an applicant for the Senior Center Board and will make a recommendation.

Councilman Weiss had several concerns about Clarence Day in the Park festivities and how the event was handled. He suggested that some changes be incorporated if this event is to continue and possibly consult an event coordinator.

Councilman Weiss has talked with the Youth Center Board and has informed them that he is recommending a full time director be hired and let that person decided the existence of the Youth Center facility.

Councilman Bernard Kolber

Councilman Kolber will announce the resignation of Lewis James from the Library Board. There is an opening to fulfill his remaining term.

Councilman Kolber will make the motion to approve the request by Town of Clarence Baseball Association to erect three temporary shade canopies for their tournament at Meadow Lakes Park on July 17 th and 18 th. The Town Board is also requesting that the TCBA provide portable lavatories at their cost.

Councilman Kolber will announce a Household Hazardous Waste drop off day.

Town Attorney Steven Bengart

If the Town Board is going to extend the moratorium, it expires on November 2, 2004. A Public Hearing will have to be scheduled forty-five days prior to the expiration date.

Motion by Supervisor Hallock, seconded by Councilman Kolber to enter into Executive Session pursuant to § 105 (1) F of the Open Meetings Law to discuss the employment history of a corporation and § 105 (1) D pending litigation. Upon roll call - Ayes: All; Noes: None. Motion carried.

There being no further business, the Work Session adjourned at 7:25 P.M.

Darcy A. Snyder

Deputy Town Clerk

Motion by Supervisor Hallock, seconded by Councilman McPherson to adjourn the Executive Session at 7:40 P.M. Upon roll call - Ayes: All; Noes: None. Motion carried. No action taken.


Regular meeting of the Town Board of the Town of Clarence was held Wednesday, July 14, 2004 at the Clarence Town Hall, One Town Place, Clarence, New York.

Supervisor Kathleen Hallock called the meeting to order at 7:40 P.M. Councilman Scott Bylewski led in the pledge to the flag, followed by a prayer given by Rev. Pierre Carrie of St. Stephen’s United Church of Christ.

Members of the Town Board present were Councilmembers Ian McPherson, Scott Bylewski, Joseph Weiss, Bernard Kolber and Supervisor Hallock. Other Town officials present were Director of Community Development James Callahan, Town Attorney Steven Bengart, Deputy Supervisor Anne Case, Building Inspector David Metzger, Assessor David Folger and Planning Board Chairperson Patricia Powers.

Motion by Councilman Bylewski, seconded by Councilman Kolber to approve the minutes of the special meeting of the Town Board, Recreation Advisory Committee and the Sports Coalition held June 16, 2004 as received. Upon roll call – Ayes: Councilmembers Weiss, Bylewski, McPherson and Supervisor Hallock; Noes: None. Recuse: Councilman Kolber. Motion carried.

Motion by Councilman Weiss, seconded by Councilman Bylewski to approve the minutes of the previous meeting held June 23, 2004 as received. Upon roll call – Ayes: All; Noes: None. Motion carried.

Motion by Supervisor Hallock, seconded by Councilman McPherson to grant approval for a Block Party on Circle Court between Nottingham and Howard on July 24, 2004. On the question, Supervisor Hallock said all the proper authorities will be notified. Upon roll call – Ayes: All; Noes: None. Motion carried.

Motion by Supervisor Hallock, seconded by Councilman Weiss to adopt the following resolution:

WHEREAS, the Town of Clarence supports the agricultural industry, the protection of farmland, intelligent development of rural communities, the Right to Farm Act and better ways to coordinate between various levels of government on development and agricultural issues, and

WHEREAS, it was stated publicly at a June 16, 2004 meeting of Erie County Legislators and town supervisors and representatives that the Erie County Legislature is committed to working with local towns and villages to secure more state and federal funding to protect farmland and help the agricultural industry in Erie County, and

WHEREAS, one solution to providing needed funds is found in legislation before the New York State Assembly and Senate (A.10053/S.6949), which if approved would create a fund for the implementation of plans for preservation of community character, including the protection of farmland, and

WHEREAS, if approved this fund would allow towns to acquire interests of rights in real property for the preservation of community character, to establish a bank pursuant to a transfer of development rights program and to provide management and stewardship for such interests and rights, and

WHEREAS, if a fund was made available for the purchase of development rights at the town level, the County Legislature would be committed to working with towns to promote a regional approach to the protection of farmland and the preservation of community character,

NOW, THEREFORE, BE IT RESOLVED, that the Town of Clarence is committed to helping the agricultural industry, the protection of farmland, intelligent development of rural communities, the Right To Farm Act and better ways to coordinate between various levels of government, and be it further

RESOLVED, that the Clarence Town Board seeks to continue to work with local towns and villages to ensure the protection of farmland and the preservation of community character, and be it further

RESOLVED, that the Clarence Town Board asks the Governor and the New York State Legislature to consider passing (S.6949/A.10053), which would create a community preservation fund, and be it further

RESOLVED, that certified copies of this resolution be forwarded to New York State Governor, George E. Pataki, New York State Majority Leader, Joseph L. Bruno, New York State Assembly Speaker, Sheldon Silver, the Western New York delegation to the New York State Legislature, Erie County Legislator Michael Ranzenhofer, the Erie County Commissioner of Environment and Planning, the New York State Department of Environmental Conservation and the President to the Erie County Farm Bureau.

Upon roll call – Ayes: All; Noes: None. Motion carried.

Supervisor Hallock noted that item 16 to approve the bills, will also include the bills of July 15, 2004.

Supervisor Hallock announced that Town Board work sessions are scheduled for September 1 and October 6, 2004 at 9:00 A.M.

Supervisor Hallock stated that the open space fee for non-subdivision residential lots and houses in new subdivisions will be charged at $450 per the Local Law amendment of September 24, 2003. They were still being collected at the previous rate of $250.

Councilman McPherson acknowledged Rob Schofield, President of the Chamber of Commerce.

Rob Schofield, President of the Clarence Chamber of Commerce said their mission is to support and strengthen business in Clarence. They respectfully request that the Town Board take whatever steps are necessary tonight for the advancement of business in the Clarence community.

Councilman McPherson announced that there are two openings on the Senior Center Board of Directors and they would like to see one filled preferably, by someone with a sociological background and the other with an attorney.

Councilman McPherson announced that the Chamber of Commerce is hosting a 50 th Anniversary Party on August 9, 2004 at the Clarence Town Park on Main Street. They will have a “Taste of Clarence”; tour of the Wilson Greatbatch Exhibit, Cruise Night; live music, etc.

Councilman McPherson announced that the Clarence Center Community Association is hosting a garden walk in Clarence Center on July 18, 2004 from Noon until 4 PM to visit 15 area gardens.

The Association will also be hosting their Annual Picnic July 22 nd at Town Place Park from 6 to 9 PM. Everyone is asked to bring a dish to pass and their own meat to barbecue.

Councilman McPherson announced that the Clarence Hollow Association is sponsoring a Garage Sale at 10365 Main Street on July 17 and 18 th. Items can be delivered or call for a pick-up to 759-2345.

Councilman Bylewski announced that the Clergy Association is holding their Annual Crop Walk on September 26, 2004 at 1:30 P.M., with more details to follow.

Motion by Councilman Bylewski, seconded by Councilman Weiss to adopt the following resolution:

Be It Resolved that the Clarence Town Board does hereby authorize the EMS Board to solicit proposals for a new joint municipal contract for pre-hospital emergency medical services.

On the question, Councilman Bylewski said they moved at the last meeting to terminate the contract with Rural/Metro to provide ambulance services. This is the next step in the process to solicit bids from any and all who provide such services.

Upon roll call – Ayes: All; Noes: None. Motion carried.

Councilman Bylewski received the Central Fire Alarm Operations Report for June 2004. Town of Clarence fire companies responded to the following: Structure fires – 13; Motor vehicle fires – 1; Miscellaneous fires – 6; EMS calls – 104; Motor vehicle accidents – 8; and Miscellaneous calls – 33 for a total of 165 alarms.

The Semiannual 2004 Operations Report is as follows: Structure fires – 33; Motor vehicle fires – 9; Miscellaneous fires – 47; False alarms – 1; EMS calls – 564; Motor vehicle accidents – 56; and Miscellaneous calls – 182 for a total of 892 alarms.

Councilman Bylewski said our Disaster Coordinator would like to do a town-wide test of the Reverse 911 system. More information will be given as it becomes available.

The Town Board and interested agencies will be holding a tabletop disaster exercise on Saturday, October 9 th.

Councilman Bylewski reported the following with regard to single family residential structures: June 2004 – 9 in subdivisions, 8 out of subdivisions for a total of 17; 2004 year-to-date – 62 in subdivisions, 30 out of subdivisions for a total of 92; June 2003 – 18 in subdivisions, 4 out of subdivisions for a total of 22; 2003 total thru June – 84 in subdivisions, 21 out of subdivisions for a total of 105. The total permits issued in 1997 were 190, and 292 in 1999. Given that we have a moratorium in place, we have building going on within the range of the building occurring in recent memory. Councilman Bylewski said there were ads in the Job Finder on June 29, 2004 for construction jobs for people involved in construction in the Town.

Motion by Councilman Bylewski, seconded by Councilman McPherson to accept, with regret, the resignation of Reas Graber from the Planning Board. On the question, Councilman Bylewski said Mr. Graber served since 2000. Chairperson Pat Powers said that his service was appreciated. Mr. Graber is wished success in his future endeavors. Upon roll call – Ayes: All; Noes: None. Motion carried.

Councilman Bylewski announced that we will accept applications for the vacancy on the Planning Board, and for the alternate position. The deadline for applications is four weeks from today.

Motion by Councilman Bylewski, seconded by Councilman Kolber to adopt the following resolution:

RESOLVED, that the Clarence Town Board authorizes the Supervisor to sign an agreement between the Town of Clarence and Wendel-Duchscherer relative to the development of a Parks and Recreation Master Plan for the Town of Clarence at a fee not to exceed $48,000 per the proposed scope of services outlined in the submitted proposal.

On the question, Councilman Bylewski read a memo from the Parks and Recreation Master Plan Review Committee stating that they have reviewed the submitted proposals from consultants. Interviews were conducted, as well as, with the Ethics Committee regarding a potential conflict of interest issue. The Committee also recommends that the plan be incorporated into Master Plan 2015 via a formal amendment to the plan. The Town Board should ensure that the scope of services for the project includes a process to incorporate the Parks and Recreation Master Plan into Master Plan 2015. Supervisor Hallock thanked the Committee for their time in reviewing the proposals and conducting the interviews.

Upon roll call – Ayes: All; Noes: None. Motion carried.

Councilman Bylewski referred to the Director of Community Development James Callahan to review the items being worked on as we are under the moratorium.

James Callahan said the Planning Board will complete their review of the 4 th Draft of the new zoning law at their July 21 st meeting. The Planning Department will assimilate all of the comments received and prepare Draft 5 for public hearings tentatively scheduled at the Planning Board level for August 18, 2004. The MRC is reviewing the SEQRA on adoption of this new law to be discussed at their July 19 th meeting.

A model subdivision law has been drafted and will be forwarded to the Planning Board to begin the review process.

A series of meetings are being scheduled for July 27 & 28 for the consultants undertaking the Adequate Public Facilities ordinance. The public meeting is set for July 28 th to review the process for developing the ordinance.

The Parks and Recreation Review Committee has completed review of the proposals and submitted their recommendation.

Councilman Bylewski asked that the Planning Department work with the Supervisor to schedule the time for the Adequate Public Facilities workshop that is scheduled for July 28 th. It will take an hour and it should be decided on whether it is held at the work session or regular meeting.

Councilman Bylewski read a memo from the Municipal Review Committee (MRC) regarding the Visone Open Development Area at 4640 Goodrich Road. The MRC has failed to generate a majority vote to make a recommendation under the State Environmental Quality Review Act (SEQRA) on this project. An issue of segmentation is the reason behind the inability to forward a recommendation. As a result, the Town Board will need to take an action under SEQRA to satisfy legal requirements and to further the review process.

The applicant is requesting to proceed on property that will be split from a much larger parcel. The concern is the future land use of the remaining property. The applicant has identified at least two different development scenarios for the remaining lands.

The failed motion of the MRC was to recommend a Negative Declaration on the 4-lot Open Development Area, identifying that the proposed development is segmentation but any development on the remaining lands is speculative and may never occur. It would require additional reviews under SEQRA if ever a more formal submittal were forwarded.

The options to the Town Board are: 1. Issue a Negative Declaration on the proposed 4-lot Open Development Area, identifying that the Open Development portion is separate and isolated from other future uses on the adjoining lands and identifying that use of the remaining lands is speculative and may never occur and will require additional reviews under SEQRA if ever a more formal submittal is forwarded.

2. Identify that the project is impermissible segmentation and that the Town Board will require a full build-out analysis for all lands controlled by the applicant. Under this scenario, the applicant should formally submit a design for full build-out on the entire property for consideration. As the Town has in force a moratorium for new subdivision review, such an application would have to wait until the moratorium is lifted.

Councilman Bylewski said that at the June 21, 2004 MRC, the vote was 3-2 for a Negative Declaration. It required having 4 votes in favor.

Motion by Councilman Bylewski, seconded by Councilman Weiss that the Town Board hereby identifies that the project is impermissible segmentation and that the Town Board will require a full build-out analysis for all lands controlled by the applicant. Under this scenario, the applicant should formally submit a design for full build-out on the entire property for consideration. As the Town has in force a moratorium for new subdivision review, the applicant, Town Attorney and Planning Department shall meet to discuss the next step in the review process for this project.

On the question, Councilman McPherson said he would like to delay the action on such a motion and return this item to the MRC, so that they can do their job with all of the members in attendance. This takes us back to Mr. Piestrak’s proposed project for the east side of Goodrich Rd., which because it was perceived to be impermissible segmentation, he presented a plan identifying use of the entire parcel knowing he would not get close to a third of the plan. He would like to see the MRC forward a recommendation up or down for the 4-lot Open Development.

Motion by Councilman McPherson, to delay action on that motion until the Municipal Review Committee forwards a recommendation that the Town Board can act on. Motion failed due to lack of a second.

On the question, Councilman Kolber said he will recuse himself from this as this property abuts his own property.

Councilman Bylewski stated why he believes this is impermissible segmentation. The SEQR Handbook states that, “segmentation is defined as the division of the environmental review of an action so that various activities or stages are addressed as though they were independent, unrelated activities needing individual determinations of significance. Except in special circumstances, considering only a part, or segment of an overall action is contrary to the intent of SEQR. There are two types of situations where segmentation can occur. One is where a project sponsor attempts to avoid an EIS by splitting a project into two or more smaller projects. The second is where activities that may be occurring at different times or places are excluded from the scope of an EIS.” He also read how an agency addresses the uncertainty of later phases.

Councilman Bylewski said it states that the basic test for segmentation should consider the following factors:

Purpose: Is there a common purpose for each segment? In this case it is all residential.

Time: Is there a common reason for each segment being completed at or about the time? That issue is up in the air.

Location: Is there a common geographic location involved? Yes there is.

Impacts: Do any of the activities being considered for segmentation share a common impact that may, if the activities are reviewed as one project, result in a potentially significant adverse impact? Councilman Bylewski said he believes it would.

Ownership: Are the different segments under the same ownership or control? It is his understanding that they are under the same ownership.

Planning: Is a given segment a component of an identifiable overall plan? Will the initial phase direct the development of subsequent phases or will it preclude or limit the consideration of alternatives in subsequent phases? Councilman Bylewski said he believes that the present proposed open development when you consider it in conjunction with the subdivision may limit the consideration of alternatives in subsequent phases.

Utility: Can any of the interrelated phases of various projects be considered functionally dependent on each other? Councilman Bylewski said he thinks that is arguable because we are talking about one being an open development area with a private roadway dead-ended within the development.

Inducement: Does the approval of one phase or segment commit the agency to approve the other phases? Councilman Bylewski said he does not think so at this point.

Councilman McPherson said there are several things up in the air and all he is saying is that he would like to see the Municipal Review Committee come back with a recommendation rather than a failure to act.

Councilman Bylewski said the next item in the handbook asked is a segmented review ever acceptable under SEQR? It states that there are limited circumstances. Justification must be clearly noted in the determination of significance and in any subsequent EIS by providing supporting reasons and demonstrating that such review will be no less protective of the environment.

Councilman Bylewski read how does an agency determine if the proposed project is part of a larger plan? Sometimes the sponsor has a definite plan for future development. It is up to the lead agency to determine. If there is evidence of a plan then there is a strong presumption that the larger project is the whole action that should be the subject of the environmental review. He read an example of a case in which a town board considered the construction of a single building on a large lot separately from other construction planned by the developer for the same site. The court found that to allow piecemeal development of the site violated the anti-segmentation rule.

Councilman Bylewski said he believes that we do have those proposed developments as submitted with respect to the open development area. The applicant’s representative was very candid that it was submitted to try and get it within the moratorium. He does not believe you can cut it both ways. It was submitted because there is a proposed project.

Upon roll call – Ayes: Councilmembers Weiss, Bylewski and Supervisor Hallock; Noes: Councilman McPherson. Recuse: Councilman Kolber. Motion carried.

Councilman Weiss asked in regard to the Reverse 911, do we receive a report as to answering machines receiving the calls, etc. Councilman Bylewski said the Town Board must authorize the test. A report would be issued. Supervisor Hallock added that the report includes recalls due to answering machines. In an emergency situation, it would let us know where we may need to go to the door.

Councilman Weiss said he is going to draw up a directive regarding future “Day In The Park” events. The number of attendees has been going down. We would like to get groups involved to invigorate the event. He would like to see proposals for the event submitted to the Town. Parameters will be written up. The Town takes care of the cleanup and contributes to the fireworks expense. We would like to see equal energy on the part of the fund raising organizations.

Motion by Councilman Kolber, seconded by Supervisor Hallock to accept the resignation of Lewis James from the Library Board. On the question, Supervisor Hallock said that term expires 12/31/05, a five-year term. Upon roll call – Ayes: All; Noes: None. Motion carried.

Councilman Kolber announced the opening on the Library Board to complete the vacant term through 12/31/05. Applications should be submitted to the Supervisor’s Office.

Motion by Councilman Kolber, seconded by Supervisor Hallock to grant permission to the Town of Clarence Baseball Association for set up of three shade canopies, and to place three portable toilets at their expense at Meadowlakes Park for their tournaments to be held July 17 & 18 and July 24 & 25, 2004. They normally use the pavilion for the tournaments. On the question, Councilman Weiss said the problem was they did not book it in advance. Upon roll call – Ayes: All; Noes: None. Motion carried.

Councilman Kolber announced that the Erie County Dept. of Environment and Planning is holding a Household Hazardous Waste Drop Off day on Saturday, July 17, 2004 at Praxair in Tonawanda from 9:00 A.M. to 2:00 P.M. Acceptable items to drop off are oil-based paints, paint thinners and solvents, batteries, antifreeze, gasoline, propane tanks, mercury, automobile tires and lawn, garden and pool chemicals.

Councilman McPherson stated that at the previous work session tonight, the Town Board entertained a proposal regarding rebuilding of a fire-damaged building owned by Jerry Edbauer. The presentation was made, which reveals some severe financial consequences and the need for immediate action to rebuild. It is the Town Board’s prerogative to address items on a case-by-case basis. He was granted approval to begin the process of rebuilding under the guise of our Planning Department and Building Department.

Councilman Weiss said also at the work session, the Town Board agreed to remain at full assessments, which we have been doing for several years.

Town Clerk Nancy Metzger stated for the record that a petition was received June 29, 2004 from the residents of the neighborhood bordering the Roxberry Park development demanding that the Town take whatever action is required to order that any and all construction in the named development be prohibited on Saturday and Sunday.

Town Clerk Nancy Metzger announced that the Certificate and Notice of Highway Closure was received from the County of Erie regarding the closure of Tonawanda Creek Road between Transit Road and Westphalinger Road due to the road slide.

Supervisor Hallock thanked department heads present for attending.

In regard to public participation, no one spoke.

A Public Hearing was held to consider the purchase of approximately 21.4 acres of property located on Gunnville Road at a purchase price not to exceed $42,800. Supervisor Hallock introduced Amy Holt from the Western New York Land Conservancy to describe the parcel and the process.

Amy Holt said they were invited by the Town to implement the greenprint process along with the Planning Department and the Recreation Advisory Committee. They sent out a basic survey form to property owners and produced a ranking criterion. They received 50 responses at that time and more have come in. The first batch was ranked and they have been working with the first 10 parcels. An independent appraiser came in and appraised the parcels. The next step was to negotiate with the landowners. The Recreation Advisory Committee approved six of the parcels and the appraised value.

Peter Wolfe, Recreation Advisory Committee said this property runs along the West Shore Line bike path property owned by the Town. A small portion of the property could be available some day for a building lot through mitigation permission from the DEC. It is a very scenic piece. Supervisor Hallock asked if it is considered wetlands? Mr. Wolfe said it is very wooded and a heron rookery. It includes a limestone swamp area. This parcel ranked 2 nd of the 10. There are two lots on either side of the frontage, which are owned by someone else.

Speaking to the subject:

Dave Folger, Assessor said he has nothing against the Town purchasing the land; his problem is the price. He looked at the appraisal and what they used as comparisons, one piece that was all floodplain. It did not include State Wetlands. Another was State Wetlands to the rear and a larger piece with a brine line going through and a corner of it had wetlands. A 30-acre piece on Wolcott had a lot of frontage and was purchased for $90,000. Then, it was sold as a 10-acre piece for $60,000 and the rest as 5-acre parcels for $25,000 each. The parcel in question is State Wetlands and you cannot do anything with it. A few years ago wetlands sold for $200 an acre and he does not know why we would pay $2,000. He also thinks the Town should buy the other two lots. The DEC is already protecting it. Councilman McPherson asked if he was in the loop? He said no.

Councilman Bylewski asked if this type of wetland could be mitigated? Amy Holt said she is not an expert, but knows that development does occur all over Western New York in State wetlands. The cost of $2,000 per acre is the lowest cost that they have looked at. Dave Folger said the whole parcel with the house has land value of $45,000.

Peter Wolfe said the Town did something similar to this when they purchased the escarpment sanctuary. It is a very popular place and a contribution to the quality of life in the Town.

Councilman Bylewski said this parcel abuts the bike path. In checking with the assessor’s office, a buildable one-acre lot in the southern portion of the Town would sell from between $30,000 to $45,000. This property could possibly be built upon, so in his mind it would be a catch at this price. He feels the benefits are immeasurable as an ecological and wildlife gem. It is also a significant buffer along the bike path.

Councilman Weiss said he would like to see Mr. Folger involved in these transactions. He thinks we are paying a premium here.

James Blum, Martha’s Vineyard said he is torn between the heron rookery and the beauty of the property, and what sounds like maybe too aggressive of an appraised value. This is a tough decision to make. It may be worth it to purchase this property in order to save on good faith to the owner. It would not be good for us to change our mind at this stage of the process. He suggested the people who work on the project to be extra diligent and use the expertise of our own assessor’s office.

Town Attorney Steven Bengart said it is significant that the contracts are subject to Town Board approval, so he does not think our credibility is ever hurt at this point. There is never a guarantee that the Town Board is going to agree to purchase the land.

Renee Desai, 5160 Ledge Lane said she is surprised that they did not check with Mr. Folger first.

Councilman Weiss asked how buildable is this land? James Callahan said from a zoning standpoint, there is 180 ft. of frontage. The State Wetlands are an inhibitor to that. However, it is not impossible. The DEC is a permitting agency and work to issue permits associated with their wetlands.

Rob Schofield, Connection Dr. said his personal opinion is to get another appraisal.

Hank Brodowski, 4570 Hedgewood Dr. is a member of the Recreation Advisory Committee. He said although it may not look like it is worth the money we are spending, property along Gunnville may someday make some very nice looking property for development. During the discussions, there was talk about the wastewater that comes out of the high school. When the sewers go down Gunnville Road, mediation and the possibility of this land not being wetlands anymore is very probable. When we purchase property for greenspace, it is forever.

Councilman Bylewski said we have an established acquisition process. He asked if that could be looked at by the Town Attorney, Director of Community Development and the Recreation Advisory Committee to see if there is any tweaking that needs to be done given the concern of the Assessor. Town Attorney Steven Bengart said it is a new process and we are trying to do our best. We will certainly learn as we go.

Councilman McPherson said we have been very conscious in trying to stay away from the identification of the properties, but he can certainly see the person who places the values on property as an integral part in the process. He recommends that Mr. Folger be included from this day forward.

Councilman Weiss said he suggests a negotiated price somewhere between the assessment and the appraised price.

With no one else speaking to the subject, motion was made by Supervisor Hallock, seconded by Councilman Bylewski to close the Public Hearing. Upon roll call – Ayes: All; Noes: None. Motion carried.

Motion by Supervisor Hallock, seconded by Councilman Bylewski to adopt the following resolution:

Resolved, that the Clarence Town Board approves the purchase of approximately a 21.4 acre parcel of vacant land located on Gunnville Road at purchase price not to exceed $42,800. Funds for said purchase will be allocated from the open space bond resolution; and

Be It Further Resolved, that the Supervisor be authorized to sign the Conditional Sales Contract for the purchase of said property.

Upon roll call – Ayes: Councilmembers Kolber, Weiss, Bylewski and Supervisor Hallock; Noes: Councilman McPherson. Motion carried.

Motion by Supervisor Hallock, seconded by Councilman Bylewski to set a Public Hearing for Towne Automotive to consider a Special Exception Use Permit for construction of a new automotive sales facility at 5411 Transit Road on August 11, 2004 at 7:45 P.M. Upon roll call – Ayes: All; Noes: None. Motion carried.

Paul Kowalski requests a wholesale and retail firewood processing facility in the Industrial Zone at 9775 County Road. Paul Kowalski of 6555 Heise Road was present. James Callahan described the project on the south side of County Road behind Brawdy Construction on Kill Deer Drive. The Master Plan describes the area in an industrial park classification.

Councilman Bylewski asked if any comments were received from neighboring properties and they were not.

Motion by Councilman McPherson, seconded by Supervisor Hallock to grant approval to Paul Kowalski for a wholesale and retail firewood processing facility in the Industrial Zone at 9775 County Road, with the condition that if there was a complaint regarding the extenuating hours, we would revisit the issue of the hours and, if there was a complaint in regard to Right-to-Farm Legislation, it would be addressed.

On the question, Councilman Bylewski said he assumes this is per the submitted site plan. It is. He asked if there were any hours of operation. Mr. Kowalski said he is looking for seven days a week from 6:00 A.M. to 10:00 P.M. It is a seasonal business and the extended hours are not for the processing, but for unloading of the logs from Pennsylvania. Councilman McPherson said we do have a policy in Town of allowing operations 7:00 A.M. to 7:00 P.M. normally six days per week, but he does not know if that applies in the Industrial Zone. The only issue he would have is if there is a residence nearby. Mr. Kowalski said not that he is aware of. Councilman McPherson said he would like to see as part of this motion that if there were a complaint, we would revisit the hours. Mr. Kowalski said that is fine. Councilman Kolber said this was approved for Heise Road and he is moving it. Mr. Kowalski said the base of his operation would remain at the Heise Road site. He is setting up the firewood-processing portion of the business on County Road. Deputy Supervisor Case said there is the Deerview subdivision off of Keller Road to the south. Mr. Kowalski said the noise is the equivalent of a loader-backhoe idling. Councilman Bylewski said we do have Right-to-Farm Legislation. He asked if we could add to the motion that if there were a complaint in this regard, it would be addressed. Upon roll call – Ayes: All; Noes: None. Motion carried.

Motion by Councilman Kolber, seconded by Councilman Bylewski to approve the following: Clubhouse Applications – A. Clarence Soccer – July 23, 2004; B. ROTA – July 29, 2004; C. Clarence Home Bureau – Oct. 7 & Dec. 9, 2004; March 10, 2005 and Legion Hall Applications – A. Lynn Owcarz – July 17, 2004; B. Daniel DiPirro – Aug. 19, 2004; C. James Dussing – Sept. 18, 2004; D. Sarah Walton – Sept. 25, 2004; E. American Legion Auxiliary – 3 rd Tuesday each month of 2005; and F. American Legion Post – 2 nd Wednesday and 4 th Monday each month & June 11, 2005. Upon roll call – Ayes: All; Noes: None. Motion carried.

Motion by Councilman Kolber, seconded by Councilman McPherson to approve Meadowlakes Pavilion #1 for the Clarence Baseball Association tournament on July 16, 2004. Upon roll call – Ayes: All; Noes: None. Motion carried.

Motion by Councilman McPherson, seconded by Councilman Bylewski that after proper audit and review by the Town Board, the following bills of July 1, 2004 are approved for payment: General Fund - $877,204.42; Highway Fund - $38,455.89; Water District - $1,409.47; Drainage District - $316,000.00; Sewer Districts - $19,440.00; Capital Fund - $19,546.68; and Trust & Agency 203 - $5,845.01 for a total amount of $1,277,901.47. Upon roll call – Ayes: All; Noes: None. Motion carried.

Motion by Councilman McPherson, seconded by Councilman Kolber that after proper audit and review by the Town Board, the following bills of July 15, 2004 are approved for payment: General Fund - $100,759.33; Highway Fund - $42,380.78; Water District - $33,165.71; Lighting Districts - $996.93; Sewer Districts - $168.38; Capital Fund - $1,980.00; and Aquatic Growth District - $1,801.88 for a total amount of $181,253.01. On the question, Councilman Bylewski said in regard to voucher 43439 for M & T, his firm represents M & T from time to time, however, this is ministerial and he will be voting. Upon roll call – Ayes: All; Noes: None. Motion carried.

There being no further business, Supervisor Hallock adjourned the meeting at 8:59 P.M. in memory of David Rey and Wentworth Blakely, Sr.

Nancy C. Metzger

Town Clerk