REGULAR MEETING
June 7, 2021
A regular meeting of the Town Board of the Town of Busti was held on Monday, June 7, 2021 at 6:45 p.m., at the Town of Busti, Town Administration Building, 125 Chautauqua Avenue, Lakewood, New York and via HD meeting video or tele conference, with the following members present:
Supervisor Jesse M. Robbins
Councilman Jim Andrews
Councilman Doug Brown
Councilman Todd Hanson
Absent: Councilman Paul Gustafson
Supervisor Robbins called the meeting to order with the salute to the flag and a moment of silence was observed.
Present at the meeting in person: Deputy Highway Superintendent Greg Johnson, Jack Knowlton, Kyle Crandall, Aaron Kier, Josh Pilling, Colin Larson, Bill Piazza, Eric Ecklof, Tera Darts, Jim Francisco, Matt Stafford, Randy Milks, James Mahoney, Shirley Ecker, Mike Ryan, and Tom Peterson.
Jack Knowlton thanked the Highway Department for the work on the cemetery roads, he said they were very nice. Mr. Knowlton asked the board to consider placing a new sign for Bentley Cemetery on Fairmount Avenue and putting up a flagpole in that cemetery.
Kyle Crandall owns Mulligans, located on Fairmount Avenue. He stated there is a problem with cats in the neighborhood. The neighbor behind his building has been feeding them and the stench from the cats is awful. The neighbor’s property is an eyesore, and they have trash in the right of way. Code Enforcement Officer Swanson stated he had another anonymous complaint over the phone. Mr. Swanson contacted the State and County and there are no laws on cats.
Discussion followed regarding the cat issue as well as multiple code violations on multiple properties located behind the Mulligan location on Fairmount Avenue.
Supervisor Robbins noted it was 7:00 p.m. and moved to open a Public Hearing regarding the adoption of Local Law No. 2 for the year 2021 “A LOCAL LAW ENACTING A MORATORIUM ON COMMERCIAL BATTERY ENERGY STORAGE SYSTEMS”
Motion was duly moved by Councilman Hanson.
All in favor, carried.
Proof of publication was placed on file.
No person present made comment on the local law. Attorney Joel Seachrist noted this law is written for Utility Grade Large Scale batteries.
Supervisor Robbins moved the following resolution which was duly moved by Councilman Hanson:
RESOLVED, the Town of Busti approve Local Law 2 of 2021 as follows:
TOWN OF BUSTI
LOCAL LAW NO. 2 FOR THE YEAR 2021
A LOCAL LAW ENACTING A MORATORIUM ON COMMERCIAL BATTERY ENERGY STORAGE SYSTEMS
Section 1. Enactment and Title.
The Town Board of the Town of Busti does hereby enact the Town of Busti Moratorium on Battery Energy Storage Systems Law. This Local Law shall impose a moratorium on applications or proceedings for applications for, the review of applications for, or the issuance of approvals or permits for the construction of any Battery Energy Storage System, as defined herein.
The capitalized terms in the foregoing sentence, and as used throughout this local law, shall have the following meanings ascribed to them:
Commercial Battery Energy Storage System– One or more devices, assembled together, capable of storing energy produced by a commercial wind or solar energy conversion system, in order to supply electrical energy at a future time, having an aggregate energy capacity greater than 600kWH or comprised of more than one storage battery technology in a room or enclosed area.
Applicant– All landowners and all those claiming through or on behalf of the owner(s), whether by license, lease, easement, contract, or by owner’s designation as an agent for purposes of making any application or any land use review or approval, whether for a permit or otherwise.
Section 2. Authorization, Purpose and Intent.
Pursuant to the authority and provisions of the New York State Constitution, and Section 10 of the Municipal Home Rule Law, and the statutory powers vested in the Town of Busti to regulate and control land use and to protect the health, safety and welfare of its residents, the Town Board (the “Board”) of the Town of Busti hereby declares a moratorium on applications or proceedings for applications for, the review of applications, or the issuance of approvals or permits for the construction of Commercial Battery Energy Storage Systems within the Town of Busti (the “Town”), lasting through December 31, 2021.
This moratorium will allow time for Town officials to review, clarify, amend, and update the Town’s Regulations for commercial battery energy storage systems, particularly with regard to where such development may be located in the Town. Additionally, this moratorium will allow the Town to adopt such other regulations as may be necessary to promote and preserve the health, safety and welfare of the Town and its citizens.
Section 3. Scope of Controls.
During the effective period of this Local Law:
- Neither the Town Board, the Zoning Board of Appeals, nor the Planning Board shall conduct any review or consider or grant any special permit or other approval that will result in the approval, establishment or construction of any Battery Energy Storage System within the Town.
- To the extent permitted by law, this moratorium shall supersede all relevant provisions of the New York State Town Law, the New York State Building Code, any relevant Town local law and any other applicable law, rule or regulation, that may be in conflict herewith. If any ambiguity or conflict exists, this local law shall govern and the presumption shall in each case be that the moratorium is in effect.
Section 4. No Consideration of New, Revised, or Renewal Applications.
No new, revised, or renewal applications shall be accepted for filing, review, or consideration, and no site plans, authorizations, special permits, permits, building permits, variances, waivers or other approvals that purport to allow or advance the development, siting, or construction of any Battery Energy Storage System shall be undertaken, reviewed, considered or issued by any board, officer, employee or agent of the Town, except as specifically set forth in Section 10 of this local law. Nor shall any language or term in this moratorium effect, or be construed to result in, any default approval, and any matter now pending shall be stayed in place during the pendency of this moratorium, with all deadlines or other timelines suspended for the same number of days that this moratorium is in effect.
Section 5. Term.
The moratorium imposed by this Local Law shall be in effect until December 31, 2022 starting from the effective date of this Local Law. This moratorium may be extended, or rescinded or removed, by local law.
Section 6. Location.
The moratorium imposed by this Local Law shall apply to the territorial limits of the Town of Busti. Any dispute as to whether a property is encompassed within the geographic area detailed above shall be resolved by reference to the official tax maps of Chautauqua County and the official New York corporate boundary maps for the Town of Busti.
Section 7. Penalties.
The following provisions shall apply generally, and the violation of this Local Law shall allow and permit enforcement in any one or more of the following manners:
- When any term, provision, or requirement of this Local Law is violated the Enforcement Officer may issue a written notice of violation to the Applicant (or other Person in violation hereof). The notice of violation shall contain; (i) the name and address of the Person alleged to have violated this Local Law; (ii) the address, when available, or a description of the building, structure or parcel upon which the violation occurred or is occurring; (iii) a brief statement specifying the nature of the violation; (iv) a statement of the fine or penalty that may or could be assessed against any Person to whom the notice of violation is directed; and (v) a clear statement identifying whether the notice commences or may commence a civil or criminal proceeding. The failure to comply with a written notice of violation by correcting the violation is in itself a separate violation of this Local Law and may be further enforced as such. In addition, Executive Law § 382 may be duly enforced separately from any such notice, and both notices may take the form of a single notice which must, in addition to the above, contain the information and be served as required by said § 382.
- The Enforcement Officer may issue stop work orders for violations of this Local Law. Any Person receiving a stop work order shall be required to halt all clearing, grading, construction, and any other or related activities, until the Enforcement Officer or a court of competent jurisdiction allows work to re-commence.
- Town may also maintain actions or proceedings in the name of the Town in a court of competent jurisdiction to compel compliance with, restrain by injunction the violation of any provision or requirement of this Local Law, including to prevent, enjoin, correct, enforce, or abate any violation of, or non-conformance with, any provision or requirement of this local law or the terms and conditions set forth in any waiver or approval issued hereunder. In any such proceeding the Town shall not be required to: (i) prove the lack of an adequate remedy at law; or (ii) to post a bond or other undertaking as a condition or requirement for any preliminary, interim, or permanent restraining order or injunction. No such action or proceeding shall be commenced without the appropriate authorization from the Town Board.
- This Local Law may be enforced civilly or criminally by seeking fines, penalties, and like punishments to deter future violations and sanction offenders. All provisions of New York law and process generally applicable to misdemeanors shall apply to any criminal proceeding brought upon any violations of this Local Law, including for purposes of conferring jurisdiction. The following civil and criminal fines and penalties shall apply to any violation of the requirements or terms of this Local Law:
- For a first offense, any Person that violates any of the provisions of this Local Law shall be (i) guilty of a violation and subject to a fine of not more than $500, or (ii) subject to a civil penalty of not more than $500 to be recovered by the Town in a civil action. Every such Person shall be deemed guilty of a separate offense for each week that such violation, disobedience, omission, neglect or refusal shall continue. Similarly, a separate civil penalty shall apply and be assessable for each week that such violation, disobedience, omission, neglect or refusal shall continue.
- For a second offense, being any violation that is found to have occurred within 2 years of any prior civil or criminal determination of any violation of this Local Law, a Person shall be (i) guilty of an unclassified misdemeanor and subject to a fine of not more than $2,500, or (2) subject to a civil penalty of not more than $2,500 to be recovered by the Town in a civil action. Every such Person shall be deemed guilty of a separate unclassified misdemeanor for each week that such violation, disobedience, omission, neglect, or refusal shall continue. Similarly, a separate civil penalty shall apply and be assessable for each week that such violation, disobedience, omission, neglect, or refusal shall continue.
- The above fines are in addition to any penalty, fine, or sentence allowed or imposable pursuant to said Executive Law § 382.
- Upon any violation of this Local Law by an Applicant or any Person, the Town may, and the Enforcement Officer shall, decline and refuse to issue any approvals, endorsements, certifications, building permits, certificates of occupancy, certificates of compliance, and any similar or other
document or approval until the Applicant or Person rectifies and cures such violation.
- Any Person violating this Local Law may be required to restore land to its prior or undisturbed condition. If restoration is not undertaken within a reasonable time after notice, the Town may take necessary corrective action, the cost of which shall become a lien upon the property until paid. In addition, the Town may commence any one or more civil proceedings in the Town Court, or any other court or tribunal of competent jurisdiction, to recover the costs of such restoration.
- For purposes of this Local Law the Justice Court of the Town is hereby vested and imbued with jurisdiction to: (i) issue administrative or other warrants in compliance with the New York Criminal Procedure Law and administrative codes of the State of New York; and (ii) hear and adjudicate allegations relating to the criminal or civil violation of this Local Law and to thereafter, if appropriate, impose any fine, penalty, or sanction.
- Criminal matters arising in relation to enforcement matters under this local law shall be and be classified as offenses per the following guidelines: (i) first offenses shall be deemed violations; (ii) second offenses shall be deemed unclassified misdemeanors; and (iii) violations of Executive Law § 382 shall be classified as set forth by New York State in such § 382.
- No remedy or penalty specified in this local law shall be the exclusive remedy available to the Town to address any violation of, or non-compliance with, the requirements of this local law. The rights and remedies of the Town are independent of each other and cumulative. The grant of any right or remedy in this Local Law is in addition to, and not in limitation of or in substitution for any other right or remedy of the Town, whether sounding in law, equity, or admiralty. Further, the election by the Town of any one right or remedy does not forestall or prevent the simultaneous or future election of any other right or remedy, whether relating to enforcement, sentencing, or otherwise.
Section 8. Exemptions and Non-Conforming Uses.
Notwithstanding any provision hereof to the contrary, any Battery Energy Storage System that has already been issued all necessary approvals or permits from the Town Board or the Planning Board (the “Town Approvals”) may continue such projects and such support activities that are being conducted in the Town as of the effective date of this Local Law, so long as such supporting activities are in all respects being conducted in accordance with all applicable laws and regulations and any conditions of approval, including all Town Approvals. Such limited right to proceed when Town Approvals have been issued shall include the right to apply for and obtain a building permit, so long as the same is or are in conformance with any existing Town Approvals.
Any expansion of a lawful, pre-existing, non-conforming use shall not be grandfathered under this Section and instead shall in all respects be prohibited as contemplated by Section 3 hereof. “Grandfathered” and allowed lawful pre-existing uses neither have nor possess any right to expand such non-conforming use whether above or below ground, and no such right shall be deemed, construed, or implied to exist.
Section 9. Validity.
The invalidity of any provision of this Local Law shall not affect the validity of any other provision of this Local Law that can be given effect without such invalid provision.
Section 10. Hardship.
The Town Board of the Town is hereby authorized to accept and review (after public notice and hearing and in accordance with the requirements of law and of this Local Law) requests for a waiver application of the provisions of this Local Law by persons aggrieved hereby.
No such waiver shall be granted by the Town Board without a showing by the Applicant that applicable regulations and restrictions have caused unnecessary hardship.
- Unnecessary Hardship. In order to prove such unnecessary hardship the Applicant is required to demonstrate to the Town Board that, with respect to every permitted use under Town land use, each of the following four criteria is satisfied: (i) the Applicant cannot realize a reasonable return on the entire parcel of property, and such lack of return is substantial as demonstrated by competent financial evidence; (ii) the alleged hardship relating to the property in question is unique, and does not apply to a substantial portion of the district or neighborhood; (iii) the neighborhood; and (iv) the alleged hardship has not been self-created.
- Reasonable Rate of Return. In evaluating whether the Applicant can realize a reasonable rate of return, the Town Board must examine whether the entire original or expanded property holdings of the Applicant are incapable of producing a reasonable rate of return (and not just the site of the proposed development project). No waiver shall be granted unless, in addition to satisfying all other applicable provisions of law and this Law, the Town Board finds that the Applicant has clearly demonstrated by detailed “dollar and cents” proof, the inability to obtain a reasonable return for the entire parcel (and not just the site of the proposed project) and for each
and every permitted use in the area of the Town the property is located.
- Unique Hardship. No waiver shall be granted unless, in addition to satisfying all other applicable provisions of the law and this Law, the Town Board finds that the entire parcel of which the project is a part possesses unique characteristics that distinguish it from other properties in the area.
- Essential Character of the Neighborhood. In making its determination, of whether the proposed development project will alter the essential character of the neighborhood, the Town Board shall take into account factors that are of vital importance to the citizens of the Town including without limitation: (i) the rural residential and agricultural character of the Town, (ii) its irreplaceable recreation, historic, and tourism sites, (iii) the extent of hazard to life, limb or property may result from the proposed development project, (iv) health impacts, (v) the social and economic impacts of traffic congestion, noise, dust, odors, emissions, solid waste generation and other nuisances, (vi) the impact on property values, and (viii) whether the Applicant will engage in the type of development that will result in degradation to the air quality, water quality or scenic or other natural resources of the Town. In order to find that the proposed development project does not alter the essential character of the neighborhood, the Board shall interpret the public interest in said essential character of the neighborhood to require, at a minimum, that the project will not do any of the following: (x) pose a threat to the public safety, including public health, water quality or air quality, (y) cause an extraordinary public expense, or (z) create a nuisance.
- Self-Created Hardship. The Town Board may find that the Applicant suffers from a self-created hardship in the event that the Board finds that (i) the Applicant’s inability to obtain a reasonable return on the property as a whole results from having paid too much or from a poor investment decision; (ii) the Applicant previously divided the property and is left with only a portion which suffers from some unique conditions for which relief is sought and which did not apply to the parcel as a whole; (iii) when the Applicant purchased the property, he or she knew or should have known the property was subject to the land use restrictions; or (iv) that the Applicant transferred or obtained property rights with only a unilateral expectation of development or investment character, and it shall be material to this question to examine the degree to which opposed to in fee (actual acquisition of fee simple title), and whether the anticipated income, profits, or receipts were conditional, contingent, or guaranteed.
If the Town Board grants a waiver from the provisions of this Local Law to the Applicant, the Applicant shall be required to comply with all provisions of the Town’s then applicable land use regulations and other laws and regulations, together with any amendments to such law or regulations which may be enacted during the term of this Local Law. Any waiver that is granted shall grant only the minimum waiver that the Town Boards deems necessary and adequate to address the unnecessary hardship proven by the Applicant, and at the same time preserve and protect the character of the neighborhood and health, safety, and welfare of the community.
Section 11. Effective Date.
This Local Law shall take effect immediately.
Upon roll call vote, all aye, carried.
Town Clerk Darlene Nygren reported her office began selling transfer station stickers today and sold 45 tickets to date.
Deputy Highway Superintendent Greg Johnson reported the department repaired the cemetery drives and the transfer station wall. They will be doing oil and stone on five miles of road, paving Lawson Road, and Nova Chip on Cowing, Garfield, and Wellman Roads. The roadside mowers have been out mowing. The county will be replacing the bridge on Southwestern Drive, just south of the Cowing/Trask Road intersection. Luke DePonceau was hired for the Parks Department summer help at a pay rate of $12.50 per hour. Deputy Superintendent Johnson noted the tennis and basketball courts at Loomis Park need attention. He was going to reach out to Seal Masters to get a quote to reseal them. Councilman Hanson will send Deputy Superintendent Johnson contact information for a local company.
Code Enforcement Office Jeff Swanson asked the board to consider having the roof units serviced and balanced. Councilman Hanson will reach out to Jamestown Heating for a quote. CEO Swanson reported he is waiting on the ISO audit for the Town of Busti. DEC had recently completed a Floodplain audit on the Town of Busti which included site visits. He questioned some of the findings and will be responding to the audit. Attorney Seachrist stated the smaller municipalities just don’t have the personnel to monitor what DEC is asking them to do with Floodplains.
Busti Fire Department Chief Matt Stafford was present but had an emergency call and had to leave the meeting. He had submitted his report to Clerk Nygren – the department has had 161 incidents year to date, last year they ran 402 incidents. The department completed the bridge washing, and the yearly physicals will be done in July.
Jack Knowlton reported the rescue boat is in service and on the lake, the department went through a six-hour training for the boat. The boat has already been used for an incident about a week ago.
Supervisor Robbins reported he and Councilman Gustafson had interviewed one candidate for the Appraiser/Assessor Clerk position. There was another qualified candidate who was not available to be interviewed.
Supervisor Robbins moved the following resolution which was duly moved by Councilman Andrews:
RESOLVED, after interviewing the candidate and seeing her qualifications, the Town of Busti hire Tera Darts for the position of Assessor at an annual salary of $45,000 for Assessor and $3,000 for clerical. The new Assessor will work a 37.5-hour week.
Upon roll call vote, all aye, carried.
Ms. Darts was present at the meeting.
Supervisor Robbins moved to set a public hearing for Local Laws 3 of 2021 – “Opting out of Adult Use Cannabis Retail Dispensaries and On-Site Consumption Sites”. The public hearing will be held on August 2, 2021 at 7:00 p.m. Motion was duly moved by Councilman Hanson.
All in favor, carried.
Supervisor Robbins moved the following resolution which was duly moved by Councilman Hanson:
RESOLVED, Supervisor Robbins be authorized to pay the Village of Lakewood $30,000, when the grant funds are received from Chautauqua Lake and Watershed Management Alliance. These funds are to be used solely towards the cost of herbicide application in Chautauqua Lake.
Upon roll call vote, all aye, carried.
There was discussion regarding a letter received from NYS DEC denying modification to the original permit for herbicide treatment. Councilman Hanson recommended Supervisor Robbins send a letter to Solitude Lake Management noting the Town of Busti had not authorized their name be included in the modification request to NYS DEC and send a copy of the letter to DEC. The board agreed.
Supervisor Robbins moved to set a public hearing on the 28th day of June, 2021, at 7:00 p.m. pursuant to Sections 405.13(B)(4) and Section 405.27(G) of the Town of Busti Zoning Code at the Town of Busti Administration Building, 125 Chautauqua Avenue, Lakewood, New York, on the application of James Willett, 179 Hull Road, Waterford, Pennsylvania, for a Special Use Permit allowing him to construct a 10’ x 16’stand-alone building on a vacant lot at Busti-Stillwater Road, which parcel is designated on the official tax map of the Town of Busti as Section 438.00, Block 1, and Lot 5. Motion was duly seconded by Councilman Hanson.
All in favor, carried.
Supervisor Robbins moved the following resolution which was duly moved by Councilman Brown:
RESOLVED, Supervisor Jesse Robbins be authorized to sign an agreement with Wendel Engineering on the ECOsponsible, LLC Large Scale Solar Array Special Use Permit application.
Upon roll call vote, all aye, carried.
Supervisor Robbins noted Busti Historical Society had submitted a letter requesting to have Lawson Road closed between Sugar Grove Road and Mill Road on June 27, 2021 form 6:00 a.m. until 6:00 p.m. for an event. Discussion followed.
Councilman Hanson moved the following resolution which was duly moved by Councilman Andrews:
RESOLVED, to authorized closing Mill Road at the five corners and Lawson Road from Mill Road to Busti Sugar Grove Road on June 27, 2021 from 6:00 a.m. until 6:00 p.m. for a Busti Historical Society event.
Upon roll call vote, all aye, carried.
Supervisor Robbins noted the Town of Busti Town Board had received a letter of resignation due to retirement from Highway Superintendent Melvin Peterson effective May 29, 2021. The board accepted the letter and thanked Mr. Peterson for his 30+ years of service.
Supervisor Robbins reported he has met with a developer who is interested in developing property on Hunt Road between Southwestern Drive and Mall Boulevard. The development would include 50 townhouses and would require the involvement of Jamestown BPU, Chautauqua South and Center Sewer District, National Grid, and National Fuel. It may be March 2022 before any final decisions are made if the developer will move forward with the plan.
Supervisor Robbins noted he had been contacted by a BMX group who is looking for a location for a racetrack. Discussion followed. The discussion will continue at the June 28th Town Board meeting.
Supervisor Robbins moved to reschedule the July 19, 2021 Town Board meeting to June 28, 2021 at 6:45 p.m. Motion was duly moved by Councilman Andrews.
All aye, carried.
Supervisor Robbins moved the following resolution which was duly moved by Councilman Brown:
RESOLVED, that Supervisor Robbins be authorized and directed to pay the presented General Fund and the Highway Fund, Abstract No. 6 from warrant #228 to and including warrant #311 in the amount of $74,867.49.
Upon roll call vote, all aye, carried.
Supervisor Robbins motioned to accept the May 3, 2021 Regular Meeting and May 14, 2021 Special Meeting; motion was duly moved by Councilman Andrews.
All in favor, carried.
Councilman Brown reported he and Clerk Nygren met and worked on finalizing documentation to be submitted to FEMA for the COVID recovery grant.
Supervisor Robbins moved for the town board to enter into Executive Session for a personnel matter at 7:55 p.m. Motion was duly moved by Councilman Hanson.
All in favor, carried.
Supervisor Robbins motioned to close the Executive Session at 9:05 p.m. Motion was duly moved by Councilman Hanson.
All in favor, carried.
Supervisor Robbins moved the following resolution which was duly moved by Councilman Hanson:
RESOLVED, Supervisor Robbins be authorized to submit a letter to the City of Jamestown stating the Town of Busti intends to dissolve the Assessor Agreement 90 days from the date of the said letter.
Upon roll call vote, all aye, carried.
Supervisor Robbins moved to adjourn the meeting at 9:10 p.m. which was duly moved by Councilman Hanson.
All in favor, carried.
Respectfully Submitted,
______________________________ Darlene H. Nygren, Town Clerk