WESTERLO — A pair of residents have sued the town over a proposed development and have challenged the town board’s right to act as a planning board.

The town board dissolved the planning board in the early 1990’s after developers complained about the length of time and requirements to get approval for projects. Town board members have since assumed planning-board duties.

Residents Paul Baitsholts and his wife, Helene Goldberger, are contesting the planning board’s decision in August to grant approval for a 12-lot residential development located adjacent to their properties.

The project, known as Emerald Meadows, is located along Stewart Road, adjacent to the towns of Berne and Rensselaerville. Properties of New York (PONY), owned by Salvatore Santonastaso (known as Sal Santo), Debra Levatino, and Elliott Fischman, wants to develop the 167-acre agricultural property. The planning board gave preliminary prior approval to the project in August.

Baitsholts and Goldberger filed an Article 78 petition, which allows citizens to challenge their government, in September. They claim the board neglected to address significant adverse environmental impacts to storm-water runoff, endangered plant species, and the condition of Stewart Road before awarding PONY preliminary prior approval for the project.

Westerlo suit

In the summons, Baitsholts and Goldberger are asking the state’s Supreme Court, the lowest in New York’s three-tiered system, to nullify and vacate the town’s negative declaration of environmental significance pursuant to the State Environmental Quality Review Act (SEQRA) concerning the major subdivision of PONY. A negative declaration means no major environmental threat is anticipated so an in-depth evaluation is not needed.

Baitsholts and Goldberger also seek to nullify and vacate the town’s preliminary subdivision plat approval; to declare that the town’s negative declaration of environmental significance and preliminary subdivision plat approval, dated Aug. 22, 2006, is void, unlawful and arbitrary and capricious; to declare that the planning board is illegally constituted; and to restrain and enjoin the town from issuing any further approvals or taking any other action to subdivide and develop the property.

Baitsholts and Goldberger say that the project will result in wastewater and stormwater runoff being directed onto their lands, will substantially alter the view from their lands, and will cause noise, which will be heard from their properties.

Baitsholts claims the water runoff from the development will end up in Lone Goose Pond, which has cottages that he and Goldberger rent out in the summer.

Santo told The Enterprise this week that the largest lot in the 167-acre project is 33 acres, and the smallest is six acres. Westerlo requires a lot to be three acres or larger to maintain its open spaces.

Baitsholts and Goldberger, he said, are alleging that septic tanks, which would be installed, will simultaneously malfunction and pollute the pond. Santo said that Emerald Meadows had three engineers inspect the site for its septic systems — one from the Albany County Department of Health, one hired by the town of Westerlo, and another from within PONY — and all three found no adverse environmental impacts.

In December of 2005, Fischman, the project’s engineer, told The Enterprise, "We did soil tests in conjunction with the Albany County Department of Health and found that all those lots are capable of supporting on-site sewer disposal systems."

Planning board disbanded

In 1992, the town board voted unanimously to disband its planning board, saying that negative feedback from residents and the refusal of planning board members to resign from their positions forced them to rescind the duties and powers of the board.

A petition signed by 300 residents, brought to the board by resident Chuck Wilderman in November of that year, triggered the board’s action. Wilderman’s subdivision required two variances and a major change in the town’s road frontage requirements.

At its December meeting that year, the town board called for the resignations of all planning board members, but, before the planning board was disbanded, only one member, then-recently-appointed Eugene McGrath, had resigned.

Each of the five planning board members said at the special meeting that resignation was given serious thought, but discarded because their work, they felt, was fair and equal.

Roland Tozer, who was then the planning board chairman, told The Enterprise this week that he thought the planning board, which was serving at the town board’s pleasure, was doing a good, "thorough" job. "We never did get a clear reason to why," Tozer said of the town board dissolving the planning board.
"I’m surprised they haven’t been sued more often," Tozer said. He said the board members don’t know about planning and they rush things along, relying on the town’s attorney to guide them.
Tozer, who said he is friends with Baitsholts and Goldberger, said that, since the dissolving of the board, he’s been disillusioned. Tozer also said that the town board uses land-use regulations as a power base, and that, by "helping people," the board makes friends and wins voters.

The state law is set up so that appointed planning board members have long terms to be shielded from voter backlash.

In December of 2005, nearly a month after the Emerald Meadows project was proposed, Councilman Ed Rash presented proposals he said he’d been formulating throughout the year. Rash said that his proposals weren’t a reaction to anything specific. Rash, concerned with preserving agriculture, proposed Westerlo change its minimum lot size from three to five acres for a single-family home and from five to seven acres for a two-family home. Rash also proposed setting aside green space to be protected; creating a right-to-farm law; researching light pollution; and including activities such as hunting, training animals, and operating all-terrain vehicles on the list of accepted uses for property.

Westerlo is the fastest-growing of the Hilltowns, closest to the Catskills, where New York City residents often vacation.

Rash told The Enterprise Tuesday that the town board members also serving as the planning board have streamlined the planning process and made the process more convenient for applicants.

Aline Galgay, the town’s attorney, when asked by The Enterprise this week if she thought the members of the town board were knowledgeable about the planning process, said, "Absolutely." She has come under fire from some residents for running their meetings. (See related story.)

Legal history

Baitsholts and Goldberger so allege in their suit that the current planning board is illegally constituted, and state law prohibits members of a town board to also serve on a planning board.
The summons cites the state’s Town Law § 271 (3), which says, "No person who is a member of the town board shall be eligible for membership on such planning board."

Neither of the plaintiff’s nor their lawyer would comment on the case to The Enterprise.

Three informal opinions from the state Office of the Attorney General say town board members are able to serve on a planning board.
One, from 1993, says, "We have previously found that a town board may perform the functions that otherwise would be performed by the planning board." The informal opinion was addressed to John W. Caffry, the village attorney for Argyle (Washington County). Caffry contacted the Attorney General’s Office because the village was concerned it would be unable to find members to serve on its planning board.
The opinion states, "We believe that the zoning articles for towns and villages are substantively the same. Thus, we believe that village trustees may perform the functions that normally would be performed by a planning board. This would not constitute a violation of section 7-718 (3) of the Village Law. That provision prohibits dual membership of an individual on the board of trustees and on the planning board."

The office recommended the village amend a section of Village Law using its home-rule powers in order to not violate the dual membership prohibition.
Another informal opinion, from 1979, says, "Town Law § 271 has to do with the creation of planning boards and appointment of members." It says a town may adopt legislation to authorize special-use permits and site plans to be reviewed and approved by a board made up of the five members of the town board and the five members of the planning board.
A decade later, the Attorney General’s Office issued an opinion to the town of Milford, which states, "In the absence of a constitutional or statutory prohibition against dual-officeholding, one person may hold two offices simultaneously unless they are incompatible."
The opinion cites Ryan v. Green, which states, "In that case, the Court held that two offices are incompatible if one is subordinate to the other or if there is an inherent inconsistency between the two offices." It later says, "The town board is not required to establish a planning board. Instead, the town board may perform the functions that otherwise would be performed by the planning board. It follows that there is no incompatibility between the duties of planning board member and town board member."