Waterfront Advisory Committee Minutes 06/10/2009

VILLAGE OF CROTON ON HUDSON, NEW YORK
MINUTES OF THE WATERFRONT ADVISORY COMMITTEE MEETING
WEDNESDAY, JUNE 10, 2009


A meeting of the Waterfront Advisory Committee of the Village of Croton-on-Hudson, New York was held on Wednesday, June 10, 2009 in the Municipal Building.

MEMBERS PRESENT:        Fran Allen, Chairperson
                                Charles Kane (taking Stuart Greenbaum's place)
                                Robert Luntz
                                Richard Olver
                                Demetra Restuccia

ALSO PRESENT:           Daniel O'Connor, P.E., Village Engineer

1.  Call to Order:

The meeting was called to order at 8:00 P.M. by Chairperson Fran Allen.

2.   MetroPCS New York, LLC – Referral from the Village Board for a Special Permit for the Collocation of a Personal Wireless Services Facility at the DPW Facility, Veteran’s Plaza – Consistency Review:

John Furst, Esq. of Cuddy & Feder LLP was present for this application.

Mr. Furst stated that MetroPCS is proposing to collocate on the cell tower that is in the process of being constructed at the DPW site.  The subject cell tower was approved by the Village in the fall of 2008; three carriers were approved with the cell tower application.  Mr. Furst stated that, if MetroPCS were granted the Special Permit by the Village Board, MetroPCS would be the fourth carrier approved for collocation on the cell tower.  MetroPCS’s antennas would be located on the tower at 100 feet above grade level, which is at a lower position on the tower than the other three carriers.  Mr. Furst noted that MetroPCS would be placing their equipment for the antennas within the designated compound at the foot of the tower.  This is (would be) consistent with what was approved for the cell tower six months ago.

Chairperson Allen noted that the cell tower was designed for five carriers.  The Village approved this application for the installation of a cell tower with the understanding that there would be a maximum of five carriers collocating on the cell tower.

Chairperson Allen said that, in reviewing the application materials submitted for the meeting tonight, she noted that some of the materials are outdated.  She gave as examples Exhibits C and D.  Chairperson Allen recommended that, for the public hearing before the Village Board, the Applicant should provide to the Village Board a complete set of application materials, which includes the final revisions made to the reports/plans submitted.     

Mr. Furst noted that, throughout the review process, the Applicant has supplied application materials to all the boards involved. The last submission made to all boards was in early May. Mr. Furst said that he understands the point that Chairperson Allen is making, i.e., that these application materials, submitted at different stages in the review process, should all be in one package. Mr. Olver said that it would seem from the materials submitted and from what he has heard from the Applicant tonight that there have been no substantive changes made, and this application for a collocation on the cell tower is consistent with what had previously been approved.  Mr. Olver suggested that the WAC could go forward with a recommendation to approve this application subject to the submission of a complete set of application materials including all revisions.

Chairperson Allen referred to the Coastal Assessment Form (CAF) submitted for this application and asked Mr. Furst if he knew where the form came from, to which Mr. Furst said that he did not know.  Mr. Kane noted that the form submitted does not appear to be the standard CAF.  Chairperson Allen said that, with respect to the CAF submitted, she would think that, in this particular case, it would not make any difference that this is not the Village form; however, it might very well make a difference in the review of another (future) application. Chairperson Allen noted that there have been discrepancies/inconsistencies in the CAF’s submitted in recent years; this is a subject for a future WAC discussion.    

Chairperson Allen asked if the WAC had any comments or questions on the CAF.  Mr. Kane referred to item #6 (“Present land use”) on page 1 of the CAF and said that he would add “parking lot” to the list of uses.    

The Village Engineer noted that there is the potential for some contamination in the soil at the foot of the tower. When the geo-tech report was prepared soil samples were taken, and there was slight contamination; however, the NYS Department of Environmental Conservation (DEC) said that the contamination was below background levels for that area.  The Village Engineer said that, even though this is the case, the soils excavated for the footings, electrical work, etc. have to be stockpiled and tested.  The Village Engineer suggested that all five carriers should stockpile their excavated soils in the same place. He suggested further that this matter regarding soil testing could be handled by the WAC as part of their recommendation to the Village Board. Chairperson Allen stated that the WAC’s recommendation could be contingent upon the Village Board’s requiring that the Village’s environmental consultant be on site to monitor the soil testing.

Mr. Kane reiterated that “parking lot” should be added to item #6 as one of the present land uses at the subject site, to which Mr. Furst told the WAC that he would make this change/addition to item #6.

Chairperson Allen referred to Section C1(a) on page 2 “Will the proposed action be located in or contiguous to any of the resource areas identified on the coastal area map?” and suggested that the answer given should be “yes” instead of “no.”  Mr. Kane said that the answer to item 1(b) “Will the proposed action be located in or contiguous to significant fish or wildlife habitats?” should also be “yes” instead of “no.”

Mr. Furst suggested that the form submitted for the WAC’s review tonight should be revised to be in sync with the CAF submitted in conjunction with the cell tower application.  Mr. Furst said that he would want to be certain that the form is the same as that, which was submitted for the cell tower in August of 2008.  The Village Engineer noted to Mr. Furst that the MetroPCS application should have its own CAF; he (Mr. Furst) cannot use the form submitted for the cell tower for this application.  Mr. Furst suggested that perhaps he could attach the CAF submitted for the cell tower as an exhibit to the MetroPCS CAF, to which the WAC agreed.

The Village Engineer suggested that the WAC could say in their recommendation that the MetroPCS antennas would have to meet the color scheme that was approved by the Village for the cell tower.

Chairperson Allen told the WAC members that she would be looking into whether or not the WAC’s consistency determination on this application should be going to the NYS Department of State.

The Village Engineer said that the answer to item 1(c) on page 2 “Will the proposed action be located in or contiguous to scenic resources of local or statewide significance?” should be “yes” instead of “no.”  

The Village Engineer noted that MetroPCS’s equipment at the base of the cell tower is being elevated/raised on piers.  The Village Engineer said that this is good due to the potential for flooding at the subject site.

The Village Engineer referred to Section D of the CAF which states that for questions answered “yes” in Section C of the CAF, the Applicant must explain the mitigation measures to be undertaken to reduce the adverse effects. The Village Engineer told Mr. Furst that he should prepare a Section D for this form (the CAF for MetroPCS).  Mr. Olver questioned the necessity of preparing another Section D and suggested that instead of doing so, the Applicant could refer to the Section D of the CAF submitted for the cell tower.  He pointed out that the potentially adverse environmental impacts to the site were dealt with at the time that the cell tower was approved. Chairperson Allen said that, with respect to the MetroPCS application, she, personally, would rather have the CAF including Section D “stand alone.”  If required, this documentation would be part of the WAC’s submission to the NYS Department of State.  Mr. Olver said that by using this approach, “there is a real danger to [producing] multiple paperwork with no substantive value.” The Village Engineer pointed out that the MetroPCS application is a separate application.  Although mitigation measures are already known and the potentially adverse environmental issues have been resolved, there are documents that need to be “self-contained” in a CAF.  Section D is an example of one of these documents.  

The WAC reviewed with Mr. Furst the CAF submitted for MetroPCS.  It was noted by the WAC that there are, indeed, differences between this CAF and the form submitted for the cell tower.  The WAC and Mr. Furst tried to “match up” the two forms to be certain that in spite of the differences all of the required questions on the environmental impacts were being covered. Chairperson Allen stated that, as discussed earlier in the meeting tonight, the answers given in the CAF to Section C1(a), (b) and (c) should be “yes” instead of “no.”  Chairperson Allen referred to Section C3(h) on page 3 “Will the proposed action involve, require or result in development within a designated flood or erosion hazard area?” and said that the answer to this question should also be “yes” instead of “no.”  Chairperson Allen said that the answer to Section C5(d) “If project is to be located adjacent to shore, is it located in flood prone area?” should be “yes” instead of “no.”  

Chairperson Allen said that she would disagree with the “Not Applicable” (N/A) response given to Section C6(a) “If the project site is publicly owned, will the project decrease the public access to water related recreation, resources and facilities?”  Chairperson Allen noted that, when the cell tower application was being reviewed, the cell tower location was ultimately changed from a location in parkland to a location on public property.  In her view, answering “yes” or “no” to this question is, indeed, applicable.  Chairperson Allen said that she would think that the answer to C6(a) should be “no.”  Chairperson Allen referred to Section C6(b) “If the project site is publicly owned, if located in the foreshore, will access to those and adjacent lands be reduced?” and said that the same applies to C6(b).  Rather than a “Not Applicable” (N/A) response, she would think that the answer should be “no.”  

Chairperson Allen referred to Section C6(g) “If the project site is publicly owned, does the present site offer or include scenic views or vistas known to be important to the community?” and suggested that the answer to this question should be “yes” instead of “no.”    

Chairperson Allen asked if there were any other comments or questions on the MetroPCS application.  The Village Engineer reiterated that any contaminated soil found at the base of the site has to be properly handled.  Mr. Kane asked if, when testing the soil, they would be testing for petroleum products only, to which the Village Engineer said that a complete scan (rather than just testing for petroleum products) would have to be performed.  

The Village Engineer noted to the WAC that another issue to be addressed is the logistics of the construction project. The Village Engineer said that some construction work would likely require a staging area, which could potentially interfere with the use of recreation areas such as the canoe launch.  The Village Engineer suggested that the Village should ask for a logistical plan for the construction when the piles are driven.  Once submitted, this plan should be reviewed and approved by the Village Engineer.

Mr. Kane noted that, according to sheet number Z-3 of the Applicant’s plans, the equipment for the antennas calls for present and future battery cabinets.  Mr. Kane asked how the batteries are charged, to which Mr. Furst said he believes they tap into the electrical lines.  Mr. Kane said that he would be interested in knowing what types of batteries are being used and how these batteries are being disposed of.  Mr. Kane said that he would want to see that these batteries are properly disposed of at a recycling facility.  The Village Engineer suggested that the WAC could bring up this issue regarding the proper disposal of used batteries in their recommendation to the Village Board.

Chairperson Allen asked if there were any other comments, to which there were none.

Chairperson Allen entertained a motion to find this project consistent with the Village’s LWRP policies subject to the conditions and/or considerations discussed tonight.  The motion to find this project consistent was made by Mr. Kane, seconded by Mr. Luntz and carried by a vote of 5 to 0.

Chairperson Allen told the WAC members that she would work with the WAC secretary to prepare a memorandum to the Village Board in time for the public hearing scheduled for Monday, June 15th.

3.   Review of Process and Status of Croton Point Park Bulkhead Replacement Project:

Chairperson Allen noted to the WAC members that, at the last Village Board meeting, she had spoken before the Village Board about the County bulkhead project at Croton Point Park and the fact that the WAC’s recommendations on this project had not been followed.  Chairperson Allen pointed out that the project engineer for the County, Ian Scott, had included the WAC’s recommendations in his application materials sent to the New York State Department of State (DOS).  In the end, the WAC’s recommendations were ignored.  The U.S. Army Corps of Engineers (ACOE) has since closed the project down for disturbing the archeological artifacts at this site.  

Chairperson Allen said that, in so far as this project and other projects that come before the WAC are concerned, she would like to have a better understanding of how the review and approval processes work.  She is not certain what materials the DOS has received from the Village.  Chairperson Allen noted that the consistency review clearly states the WAC’s conditions and these conditions were duly noted in the project engineer’s statement of what was going to be done on-site; however, it (the process) failed somewhere.  Chairperson Allen noted that the project manager, Ian Scott, had worked with the WAC during the consistency review process and had included in his application materials to the State photographs of the shell middens on-site. Mr. Scott’s materials to the State also included the requirements for completing this project and the relevant LWRP policies. Mr. Kane noted that, during the process of the bulkhead construction, these LWRP policies were violated. Chairperson Allen said that at some point in the process there was a “gap” in the transmission of information; she would want to have this “gap” identified.         

Mr. Luntz questioned what the WAC could do at this stage in the process.  Mr. Luntz noted that the WAC is not in charge of policing projects that come before them.  Once the consistency review has taken place, it [the project] is “out of our hands.”  Mr. Luntz said that the WAC made their recommendations, which were ultimately not followed. He did not see what else the WAC could do at this point.  Chairperson Allen suggested that the Village Attorney could write a letter on behalf of the WAC stating that the WAC had made their recommendations and they were ignored.  Mr. Luntz asked Chairperson Allen if she would want the Village Attorney to write this letter to the DOS with a copy to the ACOE, to which Chairperson Allen said, “Yes.”  Chairperson Allen said that she would want it on record that the WAC performed their consistency review and the subsequent information/recommendations from the WAC were correctly handled by the project engineer for the County.  

Mr. Kane said that the work on this site should have been overseen by the State Historic Preservation Office (SHPO).  Mr. Kane noted that, according to the Journal News and the Westchester Guardian Blog the County circumvented the proper permitting procedures.  Mr. Kane said that he spoke with David DeLucia at the Westchester County Department of Parks, Recreation & Conservation and, according to Mr. DeLucia, the County prepared the Phase I and Phase II archeological studies.  The Phase II study was sent to the New York State Department of Environmental Conservation (DEC), after which the County received the DEC’s approval.  The County also received the approval of the ACOE.  Mr. Kane noted that SHPO never received a copy of the Phase II archeological study.  The Village Engineer explained the events that led to the Stop Work Order by the ACOE, stating that four months after the DEC granted their approval, the DEC contacted the ACOE, probably for the purpose of addressing the State’s (SHPO’s) archeological concerns.  The State wanted restrictions placed on the permit, which had been previously granted.  Unfortunately, in spite of these efforts, the archeological artifacts at the site were disturbed.  Chairperson Allen said that it would appear that the efforts on the part of the State were made too late in the process. The ACOE halted the project, but the archeological disturbance had already taken place.       

The Village Engineer told the WAC members that Mr. DeLucia could meet the WAC for a tour of the project site, if the WAC so chooses.  Chairperson Allen said that she, personally, would like to go on an “official tour” of the site.  The Village Engineer said that he would have the WAC secretary send an email to all of the interested parties with possible dates and times for the site visit.

Mr. Kane described to the WAC members the extent of the damage that has been done, stating that all of the Native-American shell middens at Enoch’s Neck have been covered with huge rocks. Chairperson Allen added that when the WAC performed their consistency review, the shell middens at Enoch’s Neck were visible.  The WAC paid special attention to how the County should deal with that “end area” at Enoch’s Neck.  Chairperson Allen said that, regrettably, the shell middens have all been buried and are no longer visible. Chairperson Allen noted again that, as a condition of their determination of consistency, the WAC had requested that an archeologist be at this site to monitor the excavation work and ensure that any archeological artifacts on-site were left undisturbed.

Ms. Restuccia asked if there was a remedy that the WAC feels the Village should seek or should the Village start the process by asking the Village Attorney to prepare the aforementioned letter to the Department of State, to which Chairperson Allen replied that, in her view, the Village should start with the letter from the Village Attorney.  The Village Engineer said that the work on-site was performed without the supervision of an archeologist.  He suggested that an archeologist should be brought on-board to review exactly what happened at this site and develop a report.  Mr. Olver said that the WAC performed their role in making a determination of consistency on this project, and the results/findings of the WAC’s consistency review were completely ignored.  Mr. Olver said that the WAC has a duty to press this point and, then, impress it upon the County and the ACOE, who would ultimately have the authority to require remediation.  Mr. Olver noted that, in their dealings with the County and the ACOE, the WAC would have to be clear on what exactly happened at the site that was inappropriate.  Mr. Olver said that, with respect to the destruction or threat to the archeological artifacts at this site, the County should be required to do whatever is necessary to remedy this situation.

Chairperson Allen read aloud the Stop Work Order issued by the ACOE.   

Mr. Luntz asked if the conditions set forth in the WAC’s determination of consistency were a part of the County’s bid documents for hiring a contractor to carry out this project, to which Chairperson Allen said that this is a good question.  She does not have the answer.        

The Village Engineer reiterated that his office would be in touch with the WAC members regarding possible dates and times for the site visit.

4.   Other Business:

Chairperson Allen said that she would like to appoint a committee to recreate the Village’s Coastal Assessment Form (CAF).  Chairperson Allen noted that it would seem that the Village’s original CAF has had various iterations over the years, none of which were authorized by the WAC. She would like to appoint a committee to revise and customize the CAF to make it more applicable to local conditions.  Chairperson Allen appointed a committee of two, Charles Kane and herself, to recreate the CAF.

Chairperson Allen entertained a motion to form a committee for the purpose of recreating the Village’s CAF.  The motion was made by Mr. Kane, seconded by Mr. Luntz and carried by a vote of 5 to 0.

5.   Approval of Minutes:

The minutes of the Thursday, October 23, 2008 WAC meeting were approved, as amended, on a motion by Mr. Luntz, seconded by Mr. Olver and carried by a vote of 3-0-2.  Ms. Restuccia and Mr. Kane abstained.
   

6.   Adjournment:

There being no further business to come before the Committee, the meeting was duly adjourned at 9:20 P.M. on a motion by Mr. Olver, seconded by Mr. Kane and carried by a vote of 5 to 0.

Respectfully submitted,


Sylvia Mills
Secretary

Sylvia Mills
Village of Croton-on-Hudson
Engineer's Office
tel: 914-271-4783
fax: 914-271-3790