OBERER

Last Updated On:

Thursday, May 20, 2010

Project Summary

Application to subdivide 75 acres into 3 lots, part of the property commonly known as “The Pinnacle”. The property is located within the LC25 Zoning District. The project would require an approximately 4300 LF road constructed on steep slopes. Proposed on-site wastewater treatment systems would be provided and on-site wells. A major stormwater management project would be required. The proposal is to construct two of the residences near the peak of the local landmark “The Pinnacle”.  The applicant submitted revised plans at the October 2008 Planning Board meeting relocating the road cuts 20' from property lines, adding planting plans, adding building envelops and revising the filter plan.  There has been numerous public comment and approximately 10 people commented at the November 20, 2008 public hearing.  The applicant has requested the opportunity to provide written responses to the Planning Board members regarding the comments raised by the public.  The Planning Board will have only five voting members since two members have recused themselves.  Any resolution on the application will require four votes from the remaining five members.  At the December 2008 meeting, a motion was proposed to conditionally approve the subdivision.  However, the motion was not passed with a 3-2 vote - Board members Roesller, Mason and Koster in favor and Board members Gaddy and Albirch opposed.  The applicant has currently tabled the application pending the potential of alternates being appointed to the Board.  The applicant requested to be heard at the September 2009 Planning Board meeting.  The applicant had prepared a revised visual analysis, improved the proposed tree planting plan and enforcement plan and held a site visit with Planning Board members.

NOVEMBER 2009 - The attorney for Oberer has taken the legal stance that the “no Action” decision by the Bolton Planning Board will result in a defacto subdivision approval by failure to take action on an application within the required time period allowed by Town Code.  Under Town Code, the Planning Board has 45 days to make a decision on an application after the close of a public hearing.  If no decision is made, the subdivision application is automatically approved by failure to take action.  The Town of Bolton Planning Board closed the public hearing in December 2008 and reached the first 3-2 “No Action” vote.  At that meeting, the Town stated their intention to seek alternates for the Planning Board and to allow this process to proceed, Oberer waived the 45 day decision period for the Planning Board.  In the interim, the Planning Board has been unable to place alternates on the Board and the applicant attempted to slightly modify the application to obtain the fourth vote they needed.  This resulted in the September 2009 3-2 “No Action” vote.  The Oberer attorney filed a letter on November 16, 2009 officially rescinding the waiver to the Planning Board of the 45 day time period, starting the 45 days counting to an automatic approval.  Mike Mueller, Town of Bolton attorney, appears to agree with the actions of Oberer's attorney and was really trying to tell the Board they need to make a decision at the December 2009 meeting.

DECEMBER 2009 - Two Planning Board members who recused themselves stated they would like to unrecuse themselves and vote on the application.  Town Counsel advised against this unrecusal and stated this required a resolution by the Planning Board.  The Planning Board passed a resolution to not permit the two Board members to unrecuse themselves 4-1.  The public hearing was closed.  The application was voted on by the Planning Board - a motion to deny was introduced and did not pass on a 2-3 vote.  A motion to approve the application was introduced and this did not pass on a 3-2 vote.  There was no action by the Planning Board.

JANUARY 2010 - The Lake George Waterkeeper files an appeal with the Town of Bolton Zoning Board of Appeals regarding the Zoning Administrator's determination to refuse to apply the Town of Bolton Code regarding allowable clearing widths for driveways to the Oberer subdivision.  A Supplemental Petition is filed in February 2010 joined by neighboring impacted residents.

MAY 2010 - After misrepresentation by the Town of Bolton Zoning Department of the Waterkeeper appeal, a meeting was held between the Town of Bolton attorney and Zoning Administrator and the Waterkeeper and attorney. A subsequent letter was submitted and was again not recognized by the Town.  The appeal was heard by the Town of Bolton Zoning Board of Appeals at the May 18, 2010 meeting. 
 

Waterkeeper Perspective

The Waterkeeper is very concerned about the level of disturbance that will be required to construct a road up the very steep grades of the mountain. The proposed disturbance will be close to 100 feet side at points. Runoff generated from these steep slopes is difficult to manage and has great potential for erosion and sedimentation. To demonstrate the excessive disturbance, computer renderings were produced based on views from Cat Mountain.  The proposed development will also affect an important and significant local landmark.  In October 2007, the Planning Board determined the access road was a shared driveway.  The proposed driveway exceeds the allowable clearing of 16' as stated in the Town Zoning Code and appears to require a variance.  There is also a question of segmentation of the review by subdividing and creating buildable lots without adequate stormwater management plans to determine all potential impacts.

The Waterkeeper has contacted the Town Zoning Administrator requesting a response to the clearing for the driveway exceeding the allowed 16' in March 2009 but in two months, has not received a response.  A third request was filed with the Zoning Administrator in August 2009 without response.  The attorney for the Lake George Waterkeeper filed a request for determination on December 17, 2009.  Upon the determination of the Zoning Administrator that clearing limits in the Town Code only apply to driveways for single family construction and not combined driveways, the Waterkeeper submitted an appeals to the Town of Bolton Zoning Board of Appeals which was joined by neighboring impacted residents.

Waterkeeper Comments

See comment letters to the Town of Bolton Planning Board November and December 2008.  The Waterkeeper hired a consultant to provide computer renderings of the pre- and post-disturbance conditions.  Please view the following:

CAT MOUNTAIN - EXISTING LEAF OFF
CAT MOUNTAIN - JUST AFTER CONSTRUCTION LEAF OFF
CAT MOUNTAIN - AFTER PARTIAL REVEGETATION LEAF OFF
CAT MOUNTAIN - AFTER FULL REVEGETATION LEAF OFF
CAT MOUNTAIN - EXISTING LEAF ON
CAT MOUNATIN - JUST AFTER CONSTRUCTION LEAF ON
CAT MOUNTAIN - AFTER PARTIAL REVEGETATION LEAF ON
CAT MOUNTAIN - AFTER FULL REVEGETATION LEAF ON
HELICOPTER VIEW - PARTIAL REVEGETATION LEAF ON

See Waterkeeper request to Town of Bolton Zoning Administrator requesting a determination on the clearing permitted for the driveway, March 2009.  The Waterkeeper never received a response from the Zoning Administrator regarding the request for a determination on clearing width and sent a third request letter, August 2009.  As of 9/18/09, this letter had not received a response.  A letter from the attorney representing the Lake George Waterkeeper was sent to the Town Attorney regarding the failure of the Town of Bolton to respond to the request for determination, December 2009.  The Lake George Waterkeeper submitted a comment letter for the December 2009 public hearing restating concerns on the project, providing sections of noncompliance with the Town Code and providing photo validation from Cat Mountain supporting the computer renderings, December 2009.
The attorney representing the Waterkeeper submitted a Petition to the Town of Bolton Zoning Board of Appeals in January 2010 contesting the determination of the Zoning Administrator that driveway clearing restrictions in the Town Code apply only to single family homes and not to shared driveways.  The petition was joined by neighboring impacted residents and a Supplemental Petition was submitted to the Zoning Board of Appeals in February 2010.

Next Meeting

The Town of Bolton Planning Board closed the public hearing at the December 2008 meeting but was unable to reach a decision due to lack of sufficient votes.  The Town of Bolton is currently proposing alternates for the Planning Board.  If an alternate(s) is appointed, they would need to review the record of the application and applicant would be allowed to provide a presentation at a public meeting.  THE PUBLIC HEARING WOULD THEN BE REOPENNED.  Therefore, the application is tabled until such time as the alternate is appointed and has the opportunity to read the record.  The next meeting date is not available at this time.  At the September 20, 2009 meeting, the Planning Board entertained a motion to approve the three-lot subdivision with conditions of a stormwater management plan, tree planting plan and pre-development photographs.  The motion failed to pass on a 3-2 vote despite pressure applied by Chairman Koster to Member Gaddy on his vote.  Dissenting Planning Board members based their decision on tremendous excavation necessary for the driveway; puts the Town in a position of attempting to enforce a well-intended plan and the Town had a poor track record on enforcement matters; the development proposed is not appropriate for the Town in maintaining the Adirondack character of the Lake George region; there were better locations for the proposed cluster house locations; and the proposal was not consistent with the Comprehensive Plan.

NOVEMBER 2009 - The Town of Bolton Planning Board has reacted to the applicant's rescinding the time extension waiver for a decision and has scheduled a public hearing for December 17, 2009.

DECEMBER 2009 - Two Planning Board members who recused themselves stated they would like to unrecuse themselves and vote on the application.  Town Counsel advised against this unrecusal and stated this required a resolution by the Planning Board.  The Planning Board passed a resolution to not permit the two Board members to unrecuse themselves 4-1.  The public hearing was closed.  The application was voted on by the Planning Board - a motion to deny was introduced and did not pass on a 2-3 vote.  A motion to approve the application was introduced and this did not pass on a 3-2 vote.  There was no action by the Planning Board.

FEBRUARY 2010 - The appeal filed by the Lake George Waterkeeper is on the agenda for Town of Bolton Zoning Board of Appeals meeting on February 23, 2010.  However, the Town Zoning Administrator claims the appeal is in error regarding a determination driveway clearing restrictions and is misstating the appeal as one against the Planning Board decision of a combined driveway.

APRIL 2010 - The Town of Bolton Zoning Administrator refuses to recognize the appeal from the Lake George Waterkeeper and refuses to respond to the request for a determination on the clearing limits.  The item has been scheduled as a discussion item at the May 18, 2010 Zoning Board of Appeals meeting, which means not formal action will be taken by the Board.

MAY 2010 - The Town of Bolton Zoning Board did allow the Waterkeeper attorney to present the points of the appeal at the May 18, 2010 Zoning Board meeting. However, the Zoning Board decided in a 6-0 vote to not recognize the petition for appeal by the Waterkeeper and stated there was no appeal by the Zoning Administrator to appeal (refusal to respond to 5 requests), the Zoning Board would not decide on matters that were the responsibility of the Planning Board, i.e. clearing widths (although limits are placed in the Zoning Code) and the appeal was not timely to any decision made.

Related Town

Waterkeeper Comments Document

Project Address

Edgecomb Pond Rd
Bolton, NY 12814