Fill, variances: zoning changes suggested

Stephen Nappe looks on as Assemblyman Peter Lopez speaks about water diversion issues during the Oct. 1 Westerlo town board meeting. Nappe has asked for the town board to require fill permits. He is concerned that his neighbor’s filling of his own property will block the stormwater drainage through their properties.

Peter Lopez, a Republican assemblyman, speaks during the October town board meeting in Wetserlo where scheduled a town meeting for Nov. 14 at 7 p.m.

WESTERLO — How the town regulates — or doesn’t — has been part of board discussions lately on permits, solar panels, hydrofracking, and fill.

The town should streamline its permit process and start regulating solar panels, Code Enforcement Officer Edwin Lawson suggested to the town board during its Oct. 1 meeting, where some residents asked for more stringent zoning changes.

Additionally, a state Assemblyman visited the Westerlo Town Board meeting and commented on a neighbor dispute over fill.

As long as setback requirements are met, the need for a variance granted by the zoning board of appeals could be waived, said Lawson, describing the current zoning law as “ambiguous” on the matter. He also recommended the board create a fee schedule for the installation of solar panels, so the building department can check for roof integrity and setbacks.

The board voted to schedule a public hearing for the not-yet-written law on variances on Nov. 6 at 7 p.m., before the board’s regular meeting. The fee schedule for solar panels, the board agreed, would be on the agenda at the hearing.


Westerlo’s current zoning law states that any non-conforming use — one existing before the town’s law, but not complying with it — can only be expanded if the zoning board of appeals grants a variance. If the use has been abandoned for more than one year, the property can’t again be used in a non-conforming way.

Lawson said the law is “ambiguous” on the expansion of non-conforming uses because another paragraph in the same section says that any new expansions or extensions to a non-conforming use existing before the law must conform to its requirements, unless granted a variance by the zoning board of appeals.

For a variance, one has to submit a plat plan of existing and proposed structures, and a filing fee has to be paid. Notice is then given to neighboring landowners and a public hearing is held before the zoning board votes.

If the new law is passed, people would still have to apply for permits, said Lawson.

Of the process for any individual resident complying with setback requirements, Lawson said, “It’s my recommendation that we don’t wait two months, because he’s not bothering his neighbor.” Lawson often sits with the town board at its table during meetings, but, as deputy supervisor, has no vote. He can take on the duties of the position if the supervisor is absent or unable.

Solar panels

Solar energy systems are listed as a use permitted by right in the town’s zoning law.

Lawson said companies installing the solar panels and officials from the New York State Energy Research and Development Authority are surprised that the town has no oversight.

“We have to write a generic letter to prove that we don’t regulate them,” said Lawson. “We’re writing the letters all the time.”

When asked by board member William Bichteman whether he favored a wording change to regulate the panels or a fee schedule, Lawson said he preferred adding fees that would automatically start review from the building department.

Changing the fee schedule to include solar panels, Lawson said, wouldn’t require a public hearing on a local law, but Leonard Laub, briefly the town’s planning board chairman, disagreed.

“I don’t think that establishing some regulation on solar panels automatically takes away that right,” said Laub during the meeting. “I think changing the existing zoning law by removing a right probably needs a public hearing.”

Lawson said charging a fee wouldn’t change the use by right, but he said on Wednesdsay he would check with the town’s attorney.

“There’s also other identified use-by-right situations, which doesn’t necessarily mean it doesn’t have a permit,” Lawson told The Enterprise. He gave the example of home occupation, the professional or commercial use of a residence permitted by right, which would require a building permit if an office is added to a home.

Hydraulic fracturing

The discussion over the zoning law prompted resident Anita Marrone to ask from the back of the gallery whether the town’s hydrofracking law was being considered. Since 2012, the town has been reviewing hydraulic fracturing, the process of breaking apart shale in natural gas development. Bichteman said the proposed zoning changes wouldn’t address hydrofracking.

“I think the zoning requirements in the town are a tool to be used to protect the town from whatever ill influences may be upon us from hydrofracking,” said Bichteman. Bichteman has called for more work on a report about the process, submitted by the town’s special research committee, before the board takes any action.

The town board passed a law in July to extend its moratorium on gas drilling in Westerlo for another year.

The state’s highest court, the Court of Appeals, will hear a case testing whether or not municipal zoning law can ban the process or is preempted by state law. Two lower courts have decided in favor of two towns, Dryden and Middlefield, which have used zoning laws to prohibit gas development.

Resident Dianne Sefcik, who has scrutinized the board’s efforts to address hydraulic fracturing, handed a letter to board members outlining her own research into the effect it can have on the mortgages of residential properties. Bichteman has invited Sefcik to help revise the report, but has said he has so far been unable to recruit other volunteers.

The letter cites a presentation and a report by Gregory May, Vice President of residential mortgage lending at Tompkins Trust Company in which he writes of the conflict between subsurface development and the financing or appraisal of a residential property. 

Sefcik also said she attended the joint meeting of the planning and town boards to hear public comment on a draft comprehensive plan, which was reviewed by the town board in July. She said most of the residents there spoke in support of the 12 goals articulated in the plan.

Planning board Chairwoman Dorothy Verch said Wednesday the latest revisions are meant only to enhance the existing plan, which was given technical comments by the Albany County Planning Board before Verch was appointed to her position. Leslie Lombardo, a senior planner for the county, said Westerlo’s plan hasn’t yet been submitted to the county for official review.

Regarding hydraulic fracturing, Verch said the plan refers to the town’s research of the process. “As of the writing of the comprehensive plan, it was not something that was firm,” said Verch. “That should also be addressed in another two years. I don’t think another five years should go by until when this is revisited.”

The town board will have to approve the recent revisions before submitting the plan for the county’s review.

Introduction and induction

The town board heard from Assemblyman Peter Lopez, a Republican who was elected last year in a district reconfigured to include Westerlo.

The evening of Nov. 14 at 7 p.m. was set for a meeting in Town Hall in which Lopez will take questions from residents. He said flyers would go out to residents about the meeting.

A resident, Stephen Nappe, suggested Lopez could help resolve his worries that a fill project by his neighbor, David Germani, will divert stormwater onto his property by extending a dam.

Nappe asked the town board a second time to consider requiring fill permits. He is concerned his neighbor’s project, if continued, will divert snowmelt and rainwater that runs down a ravine behind their Annable Road properties. Annable Road forms a height of land from which water drains to a ravine below. Although Germani’s property is downhill from Nappe’s, Nappe is concerned the fill will deflect the water from moving freely down the ravine below both of their homes.

Nappe told the board during its September meeting that Germani has created an “earthen dam” four feet above grade, just beyond the stone wall that separates their properties. Bichteman said then he was not in favor of fill permits and noted Nappe does not currently have a flooding problem.

Nappe says he is trying to prevent litigation and is convinced that more fill will flood and devalue his property.

 “How much do you want for your house, Steve?” Germani said from the other side of the gallery at the October meeting. “I’m that neighbor.”

The current town zoning law requires site-plan approval and special-use permits for the removal of earth, or excavation, but not the filling of it.

Nappe is retired from a career as a crane operator filling and building earthen dams for a contractor for the Army Corps of Engineers. He told The Enterprise after the Oct. 1 meeting that he estimates the current fill on Germani’s property is 160 feet long, 70 feet wide, and four feet above the existing grade — around 1,600 cubic yards.

Germani disputed that he was creating a dam. “I went from that existing ground and just tapered it down. It’s not like I put a four-foot dam,” he told Lopez. Closer to the bottom of the ravine, however, the freshly layed dirt is a few feet off the ground.

Behind the two neighbors’ homes, the hill slopes into a ravine, where Nappe said he spent $5,000 to create fenced-in paths for his wire-haired dachshunds he trains to track the blood trails of game animals. Nappe said he has spoken with Germani, town attorney Aline Galgay, Lawson, and an officer from the state’s Department of Environmental Conservation.

“It has to be a state-regulated wetland or a state-regulated stream in order for us to have jurisdiction, or if they’re disturbing more than an acre,” Rick Georgeson, a spokesman for the DEC, said generally of when a permit would be required by the state.

Nappe believes Germani is getting the fill for free from Hannay Reels, where he works.

Lopez said he would have to research what agencies would be involved.

“The challenge would be, who is best able to assess the impacts,” said Lopez. “And, if there is a dispute between neighbors, who figures that out and makes decisions.”

The neighbors began speaking more to Lopez than each other.

“Something I don’t want to happen is, if somebody has to bring in fill, now all of a sudden we have to go and do permits,” said Germani. “I don’t want to create a problem. It was just an opportunity to bring in fill. I brought in fill. I didn’t think it was a big deal.”

The audience at the meeting applauded Lopez and the neighbors after Germani invited Nappe to his property.

“We’re set,” Germani said to The Enterprise when asked if anything had changed during the meeting, but he did not comment further.

Nappe said on Thursday that he did not visit Germani’s property because he knew of his neighbor’s intention to stop flooding on his property with more fill.

Other business

At recent meetings, the town board:

— Voted, 3 to 2, to compel the town and one resident to hook up to the water system completed in 2005. Anthony Sherman and Alfred Field were in opposition.

A private residence and the town hall, originally an elementary school of the Berne-Knox-Westerlo School District, had not been hooked into the system but were making payments to the bond and of minimum usage fees for 2,500 gallons per quarter.

Bichteman said a family of two typically uses 7,000 to 15,000 gallons per quarter.

“It’s not fair, A, and, B, there may be some potential revenue that the town is missing out on, the district is missing out on, that they should be collecting,” Bichteman said at the September meeting;

— Voted, 5 to 0, to amend the water district law defining the water board’s powers, duties, and membership;

— Voted, 5 to 0, to require a $200 deposit for anyone to use the town park for an event;

— Discussed the option of putting Beaver Shores Road on the town’s inventory of roads for the  Consolidated Local Street and Highway Improvement Program money it receives from the state and county. The board waited to take action before talking to the town attorney.

The local inventory of roads and the mileage for a municipality are used to calculate how much money is disbursed for maintenance and improvements. The Consolidated Local Street and Highway Improvement Program funds represented more than a third of the highway department’s revenues in the 2013 budget.

Westerlo has maintained the road since 1969, said Lawson. Board members questioned whether or not the town owns the road, which Supervisor Richard Rapp said was first created by Central Hudson in order to maintain power lines across Lake Onderdonk.

“Are we in a position to restrict the adjacent property owners’ access?” asked Bichteman. “Because,” he went on, “if you look down the road, their personal equipment and things are in the travel-way. It doesn't appear to be a good thing to have the woodpile in the middle of the road”;

—Voted, 4 to 1, to request a speed limit of 45 miles per hour on Dunbar Hollow Road, from Tan Hollow Road to the New Scotland town line. Councilman Field was opposed.

Highway Superintendent Keith Wright said he requested the change;

— Heard from town Clerk Kathleen Spinnato, reading a letter from Darrell Duncan, the commissioner of the Albany County Department of Public Works, that a reduction of the speed limit from 55 to 45 miles per hour on County Route 312 in the hamlet of Dormansville, between Route 143 and County Route 411, is warranted.

A request had been made for the reduction in December 2012;

— Agreed to have Bichteman and Lounsbury call references on Compensation Consulting Services Inc. The company would review worker’s compensation claims, of which Rapp said there had been one since 2008.

“She points out the risk is nothing to the town,” said Bichteman of Galgay. “The documents are clean, there’s no cost, and payment is based on recovery”;

— Was asked by Marrone for clarification on the dates of revision of the Code of Ethics posted recently on the town website. Bichteman responded that he would review it and noted a board of ethics was never established because of difficulty filling its positions and because state law allows for a county-level oversight of ethics violations to fill in for one absent from a town;

— Marrone thanked Wright for the highway department’s work on Tan Hollow Road to repair damage left by Tropical Storm Irene in 2011; and

— Heard a proposal from resident Eugene McGrath for the town to invite a business to build on the land now occupied by the dilapidated highway garage and court chambers, requiring the area be designated mixed-use zoning.

“It’s a matter of approaching these companies and seeing if they’d be interested,” said McGrath. “It would mean you don’t have to worry about a new roof.”

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