Getting their fill
Picard Rd. residents miffed about mining



NEW SCOTLAND – Located at the base of the Helderbergs, Picard Road generally exemplifies the quiet, rural character of the town. For the past five weeks, however, residents there have put up with loud noise produced from a screening machine used to separate rocks from excavated dirt.
The property, in a residential-agriculture district, is owned by Robert Bruno. He obtained a special-use permit from the town’s planning board in December of 2005. The permit allows Bruno to deposit more than 100 yards of fill on the site. "The fill will be obtained on site and consists of clean gravel and loam. The purpose for the earth moving is to grade a mounded area thereby creating a level area large enough to allow for the construction of a new dwelling," the permit says.
Early this summer, Bruno had the top of the hill graded, said Jean Gehring, who has lived on Picard Road for 30 years. In July, he began drilling a well, she said. In the middle of August, machinery and trucks arrived, said Gehring. "Everything seemed to have changed for some reason," she added.

Bruno could not be reached for comment.

Excavators have been working at the site for weeks, digging, screening, and hauling loads of dirt off site, said Gehring, who, along with her neighbor, Alex Orens, contacted The Enterprise to express their concerns about the site and their frustrations with the town.

On two separate occasions, Gehring followed trucks leaving the site — the first week fill was transported to a site on Brandle Road, and the following week to a site on Meadowdale Lane, she said.

Although the permit identified only one property where fill could be dumped off site — an adjoining parcel located at 486 Picard Rd., owned by Jeffrey and Donna McGinnis — fill was dumped at a site behind Orens’s house where a new home is being constructed, he said.

Donna McGinnis is the assessment clerk for the town of New Scotland; no fill was dumped on her property, Orens said.

According to town law, if Bruno were to haul fill off his property, to a site other than that of the McGinnises, he would have to identify the parcel or get a special-use permit, said Paul Cantlin, the town’s building inspector.
Because the fill dumped at the site behind Orens’s property was used for storm-water management, "it was a legal use of fill," said Cantlin. The rule governing hauling fill says that storm-water management and septic system uses are exempt, Cantlin explained.
"Nothing warranted us to say he couldn’t do it, because it is allowed," he said.

The sites on Brandle Road and Meadowdale Road where the fill was taken are located in the town of Guilderland, and therefore not in the jurisdiction of the New Scotland building department, said Cantlin.
"I can only enforce as far as my law allows," Cantlin told The Enterprise when asked about the stipulation of the permit that says, "The material moved is conceived to remain primarily on site."

Noise nuissance

Orens works in Guilderland as a regional operator for National Grid. He works the night shift and his job requires that he be alert and focused, he said.

The noise created from the excavation and screening on Bruno’s property makes it extremely difficult for Orens to sleep, he said.
Last August, the town adopted a noise control law. It works "to prevent unreasonably loud, disturbing and unnecessary noise and to reduce the noise level within the Town so as to preserve, protect and promote the public health, safety and welfare and to foster convenience, peace and quiet within the Town for the inhabitants thereof," the noise control law states.
Noise resulting from construction, defined in the law as, "the erection, including excavation, demolition, alteration or repair of any building," is prohibited between the hours of 9 p.m. and 7 a.m.

The ordinance is enforced through the town’s code enforcement officer, the county sheriff’s department, or the State Police. Those found guilty of violating the law can be fined up to $250 for each offense.

Last Saturday, the noise was so bad, Orens said, he contacted the Albany County Sheriff’s Department. The officer who responded told Orens that the sheriff’s department is not in charge of enforcing the noise ordinance; it is the responsibility of the town, he said.
"You can basically do what you want in the town of New Scotland on a Saturday or a Sunday," Orens said, referring to the fact that Town Hall is closed on the weekends.
The sound of the machines running coupled with the tumbling of stones is "very noisy," Gehring said.
"You’d think you’d get a break on the weekend," she said.
"It’s a construction project" You have a certain amount of noise with construction," said Frank Peduto, an engineer with Spectra Engineering. Peduto has been working with Bruno on the project since he applied for the special-use permit.

Spectra Engineering has worked on the grading plan, storm-water control plan, and a topographic survey of the property, Peduto told The Enterprise.
"It’s just one residence. Mr. Bruno just wants to live comfortably. It’s a temporary interruption in their normal Helderberg lifestyle," said Peduto, responding to the neighbors’ complaints.

Mining operation"

In addition to their complaints about the noise, Orens and Gehring were also concerned that Bruno, instead of simply grading the property to build a house, is mining the site.
"I don’t know what to think about what’s going on," Gehring told The Enterprise. "There is a huge pile of dirt and another huge pile of rocks," she said.
"Mr. Bruno wants to grade it down to the level he wants to live at" He doesn’t want to come back in two years," Peduto said. "Mr. Bruno wanted to do this project once, and once only," he said.
"We wanted to cut away the hillside there" We probably took about 10 feet off the hill," said Peduto, adding that it is down to a "reasonable grade" now, and the builder will be applying for a building permit with the town within a few days.
"For the purposes of drainage, it made sense to take down that hill and grade it properly," said Peduto, adding that Bruno wanted the parcel to be graded well to avoid rushing water.
The construction portion of the project is temporary, said Peduto. "We understand their complaints," he said of the neighbors. Peduto added that the neighbors had never approached Bruno with their complaints. "If he had known who these people were, he would have knocked on their door and told them what was going on," Peduto said.

Orens and Gehring have filed several complaints with the town, Orens said.

Every complaint made to the town goes through the building department, which is staffed by Cantlin and Jeff Pine.
"I feel he’s been extremely unresponsive to my concerns," Orens said of Cantlin.

The only violation thus far at the site, said Cantlin, was with the entrance. Mud was being tracked from the site onto Picard Road, he said. He went over to the site early last week and spoke to the excavating crew about it, and the problem was addressed within two or three days, Cantlin said.
"He applied as he should; he went through the process as he should; and he was approved as he should," Cantlin said of Bruno. "He hasn’t violated anything."

Because the excavation is for the purpose of constructing a house, the removal of fill cannot be considered mining, explained Allan Hewitt, the regional mining manager for the state’s Department of Environmental Conservation.

The town is claiming a construction exemption on the project, said Hewitt.
The law allows for the excavation of an area large enough for a home and 100 feet in all directions around the "footprint" of the house, Hewitt said.
"If it’s truly legitimate construction" we don’t want to stand in the way," he said.
When a DEC representative went out to the site last Friday, he located a screening operation on the site, Hewitt said. The screening machine is "indicative of mining," he said.
"The excavator agreed to take it off site," Hewitt said, adding, "We’re going to keep our eye on it."

On Tuesday, The Enterprise visited the site, where two workers from Jake Burnett Excavating, Inc. of Albany were filling two dump trucks, using two front-end loaders. The rocky soil made a loud clattering sound as it landed in the truck beds.

The two trucks and two loaders were the only equipment on site.
"We can’t have the screening machine," said Steve Onate, one of the truck operators, adding that the DEC had been by on Friday and said that it needed to be removed from the property. "Yesterday we took it out," Onate said.

Onate showed where the house will be situated on the leveled plateau, and where the septic system will go. Behind that area is a newly created cliff, which, Onate said, will be leveled to a slope for the backyard.
"We’re going to go out again at the end of the week" to be sure he hasn’t extended the excavation beyond the 100 feet radius around the area designated for the house, said Hewitt.
If he has, Hewitt said, "We’ll make him get a permit." Bruno would then have to supply the DEC with a plan indicating how the site will be mined, and how it will be reclaimed, Hewitt explained. He would also need to set up a reclamation bond for $5,500 per acre, Hewitt said.
"We have a lot of these construction things that turn into mines," Hewitt said. "It’s kind of a backdoor way of getting in" If it is the case, we will call him on it," he said.